[Federal Register Volume 67, Number 211 (Thursday, October 31, 2002)]
[Rules and Regulations]
[Pages 66311-66316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27592]


=======================================================================
-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

10 CFR Part 26

[NUREG-1600]


Revision of the NRC Enforcement Policy

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement: revision.

-----------------------------------------------------------------------

SUMMARY: The Nuclear Regulatory Commission (NRC) is publishing a 
revision to its General Statement of Policy and Procedure for NRC 
Enforcement Actions (NUREG-1600) (Enforcement Policy or Policy) to 
include an interim enforcement policy regarding enforcement discretion 
for certain fitness-for-duty issues.

DATES: This revision is effective on December 30, 2002, while comments 
are being received. Submit comments on or before December 2, 2002.

ADDRESSES: Submit written comments to: Michael T. Lesar, Chief, Rules 
and Directives Branch, Division of Administrative Services, Office of 
Administration, Mail Stop: T6D59, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001. Hand deliver comments to: 11555 Rockville 
Pike, Rockville, Maryland, between 7:30 a.m. and 4:15 p.m., Federal 
workdays. Copies of comments received may be examined at the NRC Public 
Document Room, Room O1F21, 11555 Rockville Pike, Rockville, MD.

FOR FURTHER INFORMATION CONTACT: Garmon West, Jr., Office of Nuclear 
Security and Incident Response, Senior Program Manager, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, (301) 415-1044, 
([email protected]) or Renee Pedersen, Senior Enforcement 
Specialist, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, (301) 415-2742, e-mail ([email protected]).

SUPPLEMENTARY INFORMATION: A proposed amendment to the NRC's fitness-
for-duty (FFD) regulations (10 CFR Part 26) was published on May 9, 
1996 (61 FR 21105). When the NRC sought clearance from the Office of 
Management and Budget (OMB) to publish a final rule, stakeholders 
expressed a number of concerns about the rule and its implementation. 
Given the significance of stakeholder concerns, the NRC concluded on 
October 3, 2001, that it should: (1) Withdraw the OMB clearance 
request; (2) request additional public comment on all of the rule's 
provisions; and (3) conduct stakeholder meetings concerning a combined 
access authorization and FFD guidance document. As a result of public 
meetings with stakeholders, the NRC learned of licensee practices in 
two FFD areas, ``suitable inquiry'' and ``pre-access testing,'' that 
did not meet the current Part 26 requirements.

Current FFD Requirements

    Among its other provisions, the FFD rule provides drug- and 
alcohol-related requirements for authorizing individuals for unescorted 
access to nuclear power plant protected areas or for performing 
activities related to Strategic Special Nuclear Materials. Under the 
FFD rule, to grant authorization to an individual who has not been 
employed in the nuclear industry before, licensees must:
    (1) Conduct a ``suitable inquiry'' into the individual's employment 
history for the past five years to identify if the individual had any 
substance abuse problems;
    (2) Ask the individual to provide a ``self-disclosure'' of any 
substance abuse problems;
    (3) Perform a ``pre-access'' drug and alcohol test and verify that 
the results are negative; and
    (4) Provide training to the individual regarding the effects of 
drugs and alcohol on job performance and the requirements of the 
licensee's FFD program.
    To maintain authorization, individuals must:
    (1) Be subject to ``behavioral observation'' by supervisors who are 
trained to detect signs of possible impairment and changes in behavior;
    (2) Report any drug- or alcohol-related arrests; and
    (3) Be subject to random and ``for-cause'' drug and alcohol testing 
with negative test results.
    Other requirements for authorizing individuals for unescorted 
access to nuclear power plant protected areas are defined in 10 CFR 
73.56, ``Personnel Access Authorization Requirements for Nuclear Power 
Plant Personnel.'' NRC Regulatory Guide (RG) 5.66 (1991), ``Access 
Authorization Program for Nuclear Power Plants,'' provides guidance for 
implementing Sec.  73.56. One requirement in Sec.  73.56 is that 
licensees must conduct a background investigation with former employers 
to determine whether an individual is trustworthy and reliable. 
Licensees typically ask employers the FFD suitable inquiry questions at 
the same time.
    Although the FFD regulations (10 CFR part 26) and the access 
authorization regulations (Sec.  73.56) are intended to assure that 
nuclear personnel are trustworthy and reliable, there are some 
differences between them. One important difference is that the access 
authorization regulations and RG 5.66 address licensees authorizing 
unescorted access for individuals who are transferring between licensee 
sites and have interruptions in their authorization. The FFD 
regulations are less clear on the subject of transfers and short breaks 
in authorization. For example, the only provision in the current FFD 
regulations that indirectly addresses these situations allows licensees 
to rely on a pre-access drug and alcohol test that was performed by 
another licensee within the past 60 days. Therefore, if the individual 
had a negative result from another licensee's drug and alcohol test 
within the past 60

[[Page 66312]]

days, the individual does not have to be tested again before 
authorization is reinstated at the new licensee's site. Guidance 
contained in NUREG-1385, ``Fitness for Duty in the Nuclear Power 
Industry: Responses to Implementation Questions,'' states that 
licensees may ``accept'' an authorization granted by a previous 
licensee for individuals who transfer between licensees with a ``short 
break'' in authorization, but the period of time considered to be a 
``short break'' is not defined. As a result, the current FFD 
regulations have the potential to be interpreted as requiring licensees 
to treat each individual under consideration for authorization as a new 
hire, because of the absence of the clear requirements for transfers 
and reinstatements similar to those found in the access authorization 
regulations.

Changing Industry Conditions

    At the time the FFD regulations were developed (June 7, 1989; 54 FR 
24468), the industry structure was different and personnel transfers 
(i.e., leaving the employment of one licensee to work for another 
licensee) between licensees with interruptions in authorization were 
less common. Most licensees operated plants at a single site and 
maintained a FFD program that applied only to that site. When an 
individual left employment at one site and began working for another 
licensee, the individual would be subject to a different FFD program 
that often had different requirements. Further, because some licensees 
were reluctant to share information about previous employees with the 
new employer, licensees often did not have access to the information 
the previous licensee had gathered about the individual. With 
relatively few licensee employees changing jobs, the approach in the 
current FFD regulations caused some delays in granting authorization, 
but assured that a licensee had complete information upon which to base 
an authorization decision. The current FFD requirements are 
particularly burdensome to contractor/vendor (C/V) personnel who more 
frequently transfer between sites, but, because C/V personnel as a 
group consistently tested positive for drugs and alcohol at a higher 
rate than permanent licensee employees (see NRC Information Notice 
2001-02), the NRC believed the regulation's requirements were 
warranted.
    Since 1989, the industry has undergone significant consolidation 
and developed new business practices to use its workforce more 
efficiently. The FFD regulations that treat all individuals who are 
transferring between licensees as new hires, and the lack of detailed 
requirements in the FFD regulations for managing transfers between 
sites when authorization is interrupted for short periods, have created 
a number of unnecessary burdens on licensees.
    For example, a single nuclear utility may now operate many sites 
and maintain one corporate FFD program that applies to multiple sites. 
Thus, an employee at one site operated by the corporation may be 
transferred to another site operated by the same corporation, and still 
be subject to the same FFD program. However, the individual is 
technically transferring to a new licensee and so, under the current 
regulations, is required again to meet the FFD requirements for 
authorization at the new site. Although the individual's work history 
is well documented in the FFD program, if that individual takes an 
extended vacation, for example, or spends 60 days at corporate 
headquarters between onsite assignments, the current FFD regulations 
require that the individual be treated as a new hire. The individual's 
ability to start work at the new site may be unnecessarily delayed 
until the suitable inquiry and pre-access drug and alcohol testing 
requirements of the current FFD regulations are met.
    In addition, industry efforts to better use expertise and staffing 
resources have resulted in the development of a large transient 
workforce within the nuclear industry that travels from site to site as 
needed, such as roving outage crews. Although the industry has always 
relied upon C/Vs for special expertise and to staff for outages, the 
number of transient personnel who work solely in the nuclear industry 
has significantly increased and the length of time they are onsite has 
decreased. Although the employment histories of these individuals are 
well known within the industry, these individuals also must be treated 
as new hires under the current FFD regulations.
    Because the current FFD regulations were written on the basis that 
individual licensees would maintain independent, site-specific FFD 
programs and would share limited information, and that the majority of 
nuclear personnel would remain at one site for years, the regulations 
do not adequately address the transfer of personnel between sites with 
short interruptions in authorization between assignments. As a result, 
licensees applied the principles of their access authorization programs 
(under Sec.  73.56 and RG 5.66) to the FFD programs, and developed 
three practices that do not meet the intent of the current FFD rule's 
requirements, but are consistent with the NRC's intent that licensees 
assure that personnel who are authorized to perform activities within 
the scope of Part 26 are trustworthy and reliable.

Suitable Inquiry Practices

    With regard to conducting a suitable inquiry before authorizing 
unescorted access, many licensees have adopted two practices that are 
consistent with access authorization requirements for background 
investigations, but are inconsistent with the FFD requirements 
regarding suitable inquiries. First, many licensees were not contacting 
employers when an individual had worked for an employer for less than 
30 days. Instead, licensees followed the practice for background 
investigations set forth in RG 5.66. Licensees only contacted employers 
for whom the individual had worked for 30 days or more. Second, in many 
cases, if an individual left one licensee's site and worked at a job 
that did not require access authorization for two weeks, and then was 
assigned to another licensee within 30 days of leaving the previous 
licensee, the receiving licensee would not contact the interim employer 
for the suitable inquiry. However, if the individual had an 
interruption in authorization of more than 30 days, the licensee would 
contact interim employers for suitable inquiry purposes. As is allowed 
under access authorization guidance, licensees focused the suitable 
inquiry on the period of interruption, and relied on the information 
collected by previous licensee(s) to meet the five-year suitable 
inquiry requirement. Although the requirements for a suitable inquiry 
under the FFD regulations and those for a background investigation 
under the access authorization regulations differ, licensees believed 
that it was reasonable to use the same practices for these regulations.
    As a result of initial meetings with stakeholders, the NRC 
developed an approach, in SECY-01-0134, to address inconsistent 
implementation with regard to contacting employers for each 30-day 
period. Specifically, until a final rule that would address this issue 
became effective, the following approach would be taken under an 
interim enforcement policy: The NRC normally would not take enforcement 
action for a licensee's failure to contact all employers when an 
individual was employed for less than 30 days, provided that the 
licensee verified at least one period of employment status during that 
30-day period. For example, during the month of April, if a transient 
worker was employed by Employer A for two weeks, Employer B for one 
week, and unemployed for one week, under this interim policy, it would 
only

[[Page 66313]]

be necessary to verify the individual's status for one of these 
periods. Because this practice required at least one contact for each 
30-day period, the NRC believed, at the time the policy was proposed, 
that this approach provided adequate safety in a cost-effective manner.

Pre-Access Testing

    With regard to pre-access testing, many licensees were not 
conducting a pre-access test for alcohol and drugs in those cases where 
an individual was subject to a licensee's FFD program within the past 
30 days. However, the fact that an individual was recently subject to a 
FFD program does not necessarily mean the individual was recently 
tested for drugs and alcohol. Thus, this practice conflicts with 10 CFR 
26.24(a)(1) and the applicable provisions of the NRC's guidance in 
NUREG-1385. The current regulations require, and the guidance provides, 
that an applicant be tested for drugs and alcohol ``within 60 days 
prior to the initial granting of unescorted access.'' They do not 
provide an exception for a reinstatement or transfer where there is 
little or no interruption in authorization.
    Licensees were not conducting the pre-access test in these cases 
because they viewed the initial FFD pre-access screening as being the 
same as initial screening for access authorization under 10 CFR 73.56. 
Initial screening for access authorization is completed once and, as 
long as the individual remains subject to behavioral observation and 
arrest-reporting requirements, the initial screening is not repeated.
    The NRC believes that it is reasonable that short interruptions in 
authorization be treated similarly to continuous coverage under a FFD 
program. For example, a worker who is subject to a FFD program, but is 
unavailable for behavioral observation and possible random testing 
while on vacation for two or three weeks, is generally considered to be 
under continuous coverage and is not given a pre-access test upon 
return. Also, the practice of omitting the pre-access test when the 
interruption in coverage is less than 30 days is similar to NRC's 
practice in related areas. For example, using the guidance endorsed by 
RG 5.66 for access authorization programs, licensees generally do not 
conduct a background investigation for an individual when the 
interruption in authorization is less than 30 days. In another example, 
the guidance in NUREG-1385, states that an individual covered by a C/
V's FFD program may take a (reasonably short) period of time to 
transfer from one site to another without invoking the need for a pre-
access test.
    In SECY-01-0134, the staff proposed the following interim 
enforcement policy: The NRC normally would not take enforcement action 
for a licensee's failure to conduct a pre-access test for alcohol and 
drugs in those cases where an individual has had a short break in FFD 
coverage, provided certain conditions are met. That is, the individual 
was subject to a FFD program for at least 30 of the previous 60 days 
and has not, in the past, tested positive for illegal drugs, been 
subject to a plan for treating substance abuse, been removed from or 
made ineligible for activities within the scope of Part 26, been denied 
unescorted access by any other licensee, or had adverse employment 
action taken by another employer in accordance with a drug and alcohol 
policy.

Additional Considerations

    The Commission's Staff Requirements Memorandum dated October 3, 
2001, directed the staff to request additional public comment on all 
the proposed rule's provisions and to conduct several stakeholder 
meetings concerning combined access authorization and FFD guidance. In 
response to the Commission's direction, the NRC staff has engaged 
stakeholders in monthly public meetings since November 15, 2001. As a 
result of these meetings, and as the industry develops new access 
authorization guidance that is currently under NRC review, the NRC has 
determined that the enforcement discretion proposed in SECY-01-0134 
would not adequately address a number of concerns.
    These concerns include:
    (1) The proposed approach does not adequately address new 
information developed subsequent to the events of September 11, 2001;
    (2) The proposed approach does not allow a licensee to take credit 
for the information gathered about an individual during suitable 
inquiries conducted by previous licensees;
    (3) A determination of the number of days in a 60-day period that 
an individual had been subject to a Part 26 FFD program would create an 
unnecessary regulatory burden; and
    (4) The proposed approach is inconsistent with current and 
anticipated access authorization guidance and would result in continued 
discrepancies between access authorization guidance and FFD 
requirements.
    In light of the events of September 11, 2001, and the increased 
interactions with stakeholders, the NRC now believes that contacting 
only one employer in each 30-day period in which the individual was 
employed by more than one employer does not provide a sufficient level 
of assurance that individuals granted initial authorization are 
trustworthy and reliable. Short periods of employment could be a 
warning sign of substance abuse problems. Therefore, in order to 
increase the likelihood of early detection of any developing substance 
abuse problems, the NRC has concluded that it is necessary (with one 
exception noted below) that every employer be contacted to meet the 
five-year suitable inquiry requirement, as required in the current 
regulations.
    The NRC believes that a suitable inquiry is not necessary for 
individuals being reinstated or transferred with an interruption in 
authorization of 30 days or less. Based upon industry experience, the 
NRC has concluded that there is limited risk from individuals who have 
established a work history within the nuclear industry, have previously 
met the access authorization and FFD regulations for granting and 
maintaining authorization, and have a short break in authorization due 
to a vacation or a transfer to a different site. Further, these 
individuals are required to self-disclose any drug- and alcohol-related 
problems that may have occurred during the period of interruption, and 
they recognize that a failure to report this information to the 
licensee may result in permanent revocation of authorization throughout 
the nuclear power industry. The requirement for a self-disclosure prior 
to reinstating authorization provides additional assurance that any 
developing substance abuse problems are detected for the period in 
which authorization was interrupted.
    The NRC has also concluded that it is reasonable for licensees to 
rely upon the information gathered by previous licensees, and by C/Vs 
with licensee-approved FFD programs, to meet the suitable inquiry 
requirement. Because licensees and C/Vs now share the information they 
have gathered about an individual applicant for authorization, the 
requirement for each new licensee to independently contact every 
employer from the past five years is redundant and unnecessary.
    The discretion policy proposed in SECY-01-0134 also did not 
recognize that many licensees and C/Vs now maintain some personnel in a 
``ready to be authorized'' status, although the individuals are not 
currently working at a site or assigned to perform activities within 
the scope of the FFD rule. These individuals have met the FFD and 
access authorization regulations for

[[Page 66314]]

authorization, and are subject without interruption to the licensee's 
or C/V's FFD program, including FFD training, behavioral observation, 
for-cause alcohol and drug testing, and are required to report any 
drug-or alcohol-related arrests. In some cases, they are also subject 
to random testing for drugs and alcohol. Licensees maintain that they 
should be able to ``take credit'' for the elements of the FFD program 
to which an individual has been subject without interruption when 
deciding whether to grant authorization for unescorted access to a 
nuclear power plant protected area.
    To illustrate the implications of the current FFD regulations in 
these cases, consider an individual who has been working at a nuclear 
utility's corporate headquarters for the past 45 days and has been 
subject to all of the elements of the licensee's FFD program. This 
individual is being transferred within the licensee corporation or to a 
site of a different licensee and will again require unescorted access 
to the protected area. Because the individual has not been authorized 
for unescorted access at a site during the past 45 days, the current 
regulations require the licensee to:
    (1) Obtain another self-disclosure (i.e., a self-report of any 
drug-or alcohol-related arrests), despite the fact that the individual 
has been continuously obligated to self-report any drug-or alcohol-
related arrests under the corporate FFD program;
    (2) Conduct a new suitable inquiry of the individual's past five 
years of employment before granting authorization, despite the fact 
that a suitable inquiry was conducted when the individual was first 
granted authorization and the individual has been continuously employed 
by the same corporation during the 45-day interruption in access 
authorization at a site; and
    (3) Perform a pre-access test for drugs and alcohol if the 
individual had not been selected for random testing within the past 60 
days, despite the fact that the individual was tested as part of the 
initial authorization process, has been continuously subject to the 
possibility of being tested, and may have been subject to random 
testing several times since the first authorization was granted.
    These actions represent an unnecessary regulatory burden in such 
instances.
    The NRC further believes that one FFD program element cannot be 
substituted for another. So, for example, if an individual has been 
subject to a licensee's or C/V's FFD behavioral observation and arrest-
reporting requirements, but was not subject to random testing, then the 
licensee would be required to conduct a pre-access test for drugs and 
alcohol. If an individual was not under arrest-reporting and behavioral 
observation requirements without interruption, but had a drug and 
alcohol test within the past 60 days, then only the self-disclosure and 
suitable inquiry would be necessary before granting authorization.

Revised Enforcement Discretion

    Based on these considerations, the NRC has revised the enforcement 
discretion policy proposed in SECY-01-0134 as follows:
    Licensees may rely upon the information gathered by previous 
licensees regarding an individual applicant's past five years of 
employment to meet the suitable inquiry requirement. Because licensees 
now share information from the suitable inquiries they have conducted, 
as well as information about an individual's compliance with the 
licensee's FFD policy during the period authorization is held at each 
site, the NRC believes that relying upon the information gathered by 
previous licensees provides adequate safety.
    If an individual's authorization has been interrupted for 30 
calendar days or less and the individual's last authorization was 
terminated favorably (i.e., the individual did not violate the 
licensee's FFD policy), before granting authorization for unescorted 
access to the protected area of a nuclear power plant or assigning the 
individual to perform activities within the scope of part 26, the 
licensee shall:
    (1) Obtain and verify that a self-disclosure (i.e., a report of any 
drug-or alcohol-related arrests) for the period since the last 
authorization contains no potentially disqualifying FFD information, 
unless the individual was subject to a licensee-approved behavioral 
observation and arrest-reporting program throughout the period of 
interruption; and
    (2) Ensure that the individual has met FFD refresher training 
requirements.
    If an individual's authorization has been interrupted for 31 days 
to 60 days and the individual's last authorization was terminated 
favorably, in order to grant authorization for unescorted access to the 
protected area of a nuclear power plant or assigning the individual to 
perform activities within the scope of part 26, the licensee shall:
    (1) Obtain and verify that a self-disclosure for the period since 
the last authorization contains no potentially disqualifying FFD 
information, unless the individual was subject to a licensee-approved 
behavioral observation and arrest-reporting program throughout the 
period of interruption;
    (2) Within 5 working days of granting authorization, complete a 
suitable inquiry for the period since last authorization was terminated 
by contacting every interim employer, unless the individual was subject 
to a licensee-approved behavioral observation and arrest-reporting 
program throughout the period of interruption;
    (3) Verify that results of an alcohol test are negative and collect 
a specimen for drug testing, unless either a drug and alcohol test 
meeting the standards of part 26 was performed within the past 60 days 
and results were negative, or the individual was subject to a licensee-
approved part 26 FFD program that included random drug and alcohol 
testing throughout the period of interruption; and
    (4) Ensure that the individual has met FFD refresher training 
requirements.
    This revised enforcement discretion policy addresses not only short 
breaks of 30 days or less, but also an interruption of 31 days to 60 
days. In SECY-01-0134, the proposed enforcement discretion for 
reinstatement or transfer indicated that the individual must be subject 
to a part 26 program for ``at least 30 of the previous 60 days'' to be 
exempt from a pre-access test. The revised enforcement discretion 
policy addresses interruptions up to 60 days, provides a graded 
approach to pre-access testing, and ensures consistency with the 
requirement that licensees perform ``testing within 60 days prior to 
the initial granting of unescorted access to protected areas or 
assignment to activities with the scope'' of part 26. In addition, the 
revised enforcement discretion policy is consistent with the 
interruption periods that are being used in the draft FFD rule (http://ruleforum.llnl.gov).
    This revised enforcement discretion policy has several advantages 
over the enforcement discretion policy proposed in SECY-01-0134. 
Specifically, this policy:
    (1) Provides greater assurance that individuals granted unescorted 
access to nuclear power plants are trustworthy and reliable;
    (2) Provides greater alignment between the interim enforcement 
discretion policy and the future FFD rule;
    (3) Achieves greater consistency between FFD and access 
authorization guidance;

[[Page 66315]]

    (4) Allows licensees to take credit for the suitable inquiries 
conducted by previous licensees;
    (5) Reduces the ambiguity in the current rule regarding the NRC's 
expectations for managing transfers of personnel between sites;
    (6) Minimizes the unnecessary burden of redundant regulatory 
requirements; and
    (7) Takes a graded approach to updating and reinstating 
authorization for individuals whose authorization has been interrupted 
for up to 60 days.
    Further, the revision recognizes that the potential risks of 
updating or reinstating an individual who has recently held 
authorization, or has been subject to the majority of the elements of a 
part 26 FFD program, are less than those presented by an unknown and 
unmonitored individual, for whom the current regulations allow up to 60 
unmonitored days between the pre-access test and the authorization to 
perform activities within the scope of part 26. The NRC believes these 
measures will maintain safety and increase the overall efficiency and 
effectiveness of the licensees' part 26 programs, while reducing 
unnecessary regulatory burden.
    The NRC does not intend to pursue past violations for insufficient 
suitable inquiries (where licensees failed to contact employers when 
individuals had worked for employers for less than 30 days) and past 
violations for failures to perform pre-access drug tests (where 
individuals were subject to a FFD program within the last 30 days). The 
NRC believes that this exercise of enforcement discretion is 
appropriate because:
    (1) Individuals who currently have authorization under the past 
suitable inquiry pre-access testing practices have successfully 
maintained their authorizations while subject to part 26 FFD programs 
over time;
    (2) Pursuing past violations would not be an effective and 
efficient use of NRC resources; and
    (3) Requiring licensees to conduct new suitable inquiries and pre-
access tests would represent undue regulatory burden.
    In conclusion, the NRC believes that the practices included in this 
interim enforcement policy will ensure adequate protection of public 
health and safety and nuclear security.
    Accordingly, the proposed revision to the NRC Enforcement Policy 
reads as follows:

General Statement of Policy and Procedure for NRC Enforcement Actions

* * * * *

Interim Enforcement Policies

Interim Enforcement Policy for Generally Licensed Devices Containing 
Byproduct Material (10 CFR 31.5)
* * * * *
Interim Enforcement Policy Regarding Enforcement Discretion for Certain 
Fitness-for-Duty Issues (10 CFR part 26)

    This section sets forth the interim enforcement policy that the NRC 
will follow to exercise enforcement discretion for certain violations 
of requirements in 10 CFR part 26, Fitness-for-Duty Programs that occur 
after December 30, 2002. The NRC will also exercise enforcement 
discretion and normally not pursue past violations for insufficient 
suitable inquiries (where licensees failed to contact employers when 
individuals had worked for employers for less than 30 days) and past 
violations for failures to perform pre-access drug tests (where 
individuals were subject to a FFD program within the last 30 days) that 
occurred prior to December 30, 2002. The policy, subject to subsequent 
Commission-approved associated policy, guidance, or regulation, is in 
effect until a final revision of 10 CFR part 26 is issued and becomes 
effective.

Suitable Inquiry

    The regulation in 10 CFR 26.3 requires that before granting an 
individual unescorted access, a licensee must conduct a suitable 
inquiry consisting of a ``best-effort verification of employment 
history for the past five years, but in no case less than three years, 
obtained through contacts with previous employers to determine if a 
person was, in the past, tested positive for illegal drugs, subject to 
a plan for treating substance abuse, removed from, or made ineligible 
for activities within the scope of 10 CFR part 26, or denied unescorted 
access at any other nuclear power plant or other employment in 
accordance with a fitness-for-duty policy.''
    The requirement does not provide an exception when an individual is 
reinstated at a licensee facility or transferred within a licensee 
corporation or to another licensee where there is little or no 
interruption in authorization. The term, ``authorization,'' refers to a 
period during which an individual maintained unescorted access or was 
assigned to perform activities within the scope of part 26. However, 
enforcement action will not normally be taken for failure to contact 
interim employers, if the following practice is adopted:
    If the individual applicant's authorization has been interrupted 
for 30 calendar days or less and the individual's last authorization 
was terminated favorably, before granting authorization for unescorted 
access to the protected area of a nuclear power plant or assigning the 
individual to perform activities within the scope of part 26, the 
licensee shall obtain and verify that a self-disclosure (i.e., a report 
of any drug-or alcohol-related arrests) for the period since the last 
authorization contains no potentially disqualifying FFD information, 
unless the individual was subject to a licensee-approved behavioral 
observation and arrest-reporting program throughout the period of 
interruption. Potentially disqualifying FFD information means 
information demonstrating that an individual has, during the period 
authorization was interrupted:
    (1) Violated an employer's drug and alcohol testing policy;
    (2) Used, sold, or possessed illegal drugs;
    (3) Abused legal drugs;
    (4) Subverted or attempted to subvert a drug or alcohol testing 
program;
    (5) Refused to take a drug or alcohol test;
    (6) Been subjected to a plan for substance abuse treatment (except 
for self-referral); or
    (7) Had legal or employment action taken for alcohol or drug use.
    The licensee shall also ensure that the individual has met FFD 
refresher training requirements.
    The requirements also do not provide an exception for each licensee 
to conduct a suitable inquiry into an individual applicant's past five 
years of employment when an individual is reinstated at a licensee 
facility or transferred to another licensee facility. However, 
enforcement action will not normally be taken for failure to contact 
employers from the past five years, if the following practice is 
adopted:
    Licensees may rely upon the information gathered by previous 
licensees regarding an individual applicant's past five years of 
employment to meet the suitable inquiry requirement.
    The NRC may take enforcement action when a licensee does not follow 
these practices.

Pre-Access Testing

    The regulation in 10 CFR 26.24(a)(1) requires that a person be 
tested for drugs and alcohol ``within 60 days prior to the

[[Page 66316]]

initial granting of unescorted access to protected areas.''
    The requirement does not provide an exception when an individual is 
reinstated at a licensee facility or transferred within a licensee 
corporation or to another licensee where there is little or no 
interruption in authorization. However, enforcement action will not 
normally be taken for failure to conduct a pre-access test for alcohol 
and drugs, if the following practice is adopted:
    If the individual applicant's authorization has been interrupted 
for 30 calendar days or less and the individual's last authorization 
was terminated favorably, in order to grant authorization for 
unescorted access to the protected area of a nuclear power plant or 
assigning the individual to perform activities within the scope of part 
26, the licensee shall:
    (1) Obtain and verify that a self-disclosure for the past 30 days 
reveals no potentially disqualifying information, unless the individual 
was subject to a licensee-approved behavioral observation and arrest-
reporting program throughout the period of interruption; and
    (2) Ensure that the individual has met FFD refresher training 
requirements.
    If the individual applicant's authorization has been interrupted 
for 31 days to 60 days and the individual's last authorization was 
terminated favorably, in order to grant authorization for unescorted 
access to the protected area of a nuclear power plant or assigning the 
individual to perform activities within the scope of part 26, the 
licensee shall:
    (1) Obtain and verify that a self-disclosure for the period since 
the last authorization contains no potentially disqualifying FFD 
information, unless the individual was subject to a licensee-approved 
behavioral observation and arrest-reporting program throughout the 
period of interruption;
    (2) Within 5 working days of granting authorization, complete a 
suitable inquiry for the period since last authorization was 
terminated, unless the individual was subject to a licensee-approved 
behavioral observation and arrest-reporting program throughout the 
period of interruption;
    (3) Verify that results of an alcohol test are negative and collect 
a specimen for drug testing, unless either a drug and alcohol test 
meeting the standards of Part 26 was performed within the past 60 days 
and results were negative or the individual was subject to a licensee-
approved part 26 FFD program that included random drug and alcohol 
testing throughout the period of interruption; and
    (4) Ensure that the individual has met FFD refresher training 
requirements.
    The NRC may take enforcement action when a licensee does not follow 
these practices.

    Dated at Rockville, MD, this 24th day of October, 2002.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 02-27592 Filed 10-30-02; 8:45 am]
BILLING CODE 7590-01-P