[Federal Register Volume 81, Number 193 (Wednesday, October 5, 2016)]
[Proposed Rules]
[Pages 69010-69011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24073]



10 CFR Chapter I


Processing Fitness-for-Duty Drug and Alcohol Cases

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy revision; request for comment.


SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is requesting 
public comments on proposed revisions to its Enforcement Policy (the 
Policy). The NRC is proposing to revise Section 4.1, ``Considerations 
in Determining Enforcement Actions Involving Individuals,'' of the 
Policy to indicate that the NRC typically will not consider Fitness-
for-Duty (FFD) Drug and Alcohol (D&A) related violations for 
enforcement unless the licensee's FFD program has apparent 

DATES: Submit comments by November 4, 2016. Comments received after 
this date will be considered if it is practical to do so, but the NRC 
is able to assure consideration only for comments received on or before 
this date.

ADDRESSES: You may submit comments by any of the following methods 
(unless this document describes a different method for submitting 
comments on a specific subject):
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0185. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     Email comments to: [email protected]. If you do 
not receive an automatic email reply confirming receipt, then contact 
us at 301-415-1677.
     Fax comments to: Secretary, U.S. Nuclear Regulatory 
Commission at 301-415-1101.
     Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and 
Adjudications Staff.
     Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal 
workdays; telephone: 301-415-1677.
    For additional direction on obtaining information and submitting 
comments, see ``Obtaining Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: David Furst, Office of Enforcement, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; 
telephone: 301-415-7634, email: [email protected].


I. Obtaining Information and Submitting Comments

A. Obtaining Information

    Please refer to Docket ID NRC-2016-0185 when contacting the NRC 
about the availability of information for this action. You may obtain 
publicly-available information related to this action by any of the 
following methods:
     Federal rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0185.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and 
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS, 
please contact the NRC's Public Document Room (PDR) reference staff at 
1-800-397-4209, 301-415-4737, or by email to [email protected]. The 
ADAMS accession number for each document referenced (if it is available 
in ADAMS) is provided the first time that it is mentioned in this 
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments

    Please include Docket ID NRC-2016-0185 in your comment submission.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly

[[Page 69011]]

disclosed in your comment submission. The NRC will post all comment 
submissions at http://www.regulations.gov as well as enter the comment 
submissions into ADAMS. The NRC does not routinely edit comment 
submissions to remove identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment into ADAMS.

II. Discussion

    On January 31, 2016, the NRC staff submitted to the Commission 
SECY-16-0009, ``Recommendations Resulting from the Integrated 
Prioritization and Re-Baselining of Agency Activities,'' dated January 
31, 2016 (ADAMS Package Accession No. ML16028A189). Item 101 in 
Enclosure 1 of SECY-16-0009 included the NRC staff's recommendations 
for creating efficiencies in the Enforcement Process, in part by 
reducing FFD case processing.
    In developing potential efficiencies in the enforcement program, 
the NRC staff concluded that not processing routine cases involving D&A 
issues would reduce NRC staff resources without impacting safety, as 
discussed more fully below.
    The Commission approved the NRC staff's recommendation to reduce 
FFD case processing in the Staff Requirements Memorandum for SECY-16-
0009, dated April 13, 2016 (ADAMS Accession No. ML16104A158).
    Part 26 of title 10 of the Code of Federal Regulations (10 CFR) 
requires licensees to establish D&A testing programs and report test 
results to the NRC. The NRC's Office of Investigations (OI) 
investigates FFD D&A cases, many of which involve an individual who 
violates FFD D&A procedures at a site. Typically, the licensee has 
identified the issue and conducted an internal investigation yielding 
evidence of an FFD D&A violation by the time they notify the NRC. In 
most cases, pursuant to 10 CFR part 26, the site FFD D&A policy 
provides penalties for specific violations. The NRC believes that 
individual FFD D&A issues generally are dispositioned by the licensee 
according to the programs in place. Therefore, NRC staff review of 
individual FFD D&A cases appears to be an area where the NRC can make 
efficiency gains. The NRC is proposing changes to the enforcement 
process with respect to FFD D&A cases where an individual violates the 
site FFD D&A procedure, but where there is no breakdown in the 
performance of the FFD process itself.
    On March 31, 2008 (73 FR 16965), the NRC amended 10 CFR part 26, in 
part, to strengthen the D&A testing requirements and broaden the scope 
of D&A testing to other NRC licensees (e.g., owner operators of uranium 
fuel fabrication facilities) and to persons who perform safety or 
security-significant activities within the protected areas (PA) of 
these sites. The NRC implemented an electronic reporting (e-reporting) 
system to simplify and improve FFD data reporting and to enable the 
reporting of additional voluntary information to the NRC.
    Based on the FFD performance information reported electronically to 
the NRC since 2009 and a comparison of this information to previous 
years and other indicators, the commercial nuclear industry continues 
to effectively implement the 10 CFR part 26 D&A provisions and FFD 
program results have directly contributed to public health and safety 
and the common defense and security. Licensees identify persons under 
the influence of illicit drugs and/or alcohol and remove them from the 
PA of NRC-licensed facilities, and licensees identify persons of 
questionable trustworthiness and reliability, in part, through rigorous 
testing methods (e.g., limit-of-detection testing, cutoffs, and 
effective monitoring during specimen collections). These outcomes 
provide reasonable assurance that persons who perform safety or 
security-significant activities, or who have unescorted access to 
certain NRC-licensed facilities, information, or material, are fit-for-
duty, and that the public and the NRC are timely informed of FFD 
performance. The data indicates no adverse trends.
    Since March 31, 2008, when the NRC amended 10 CFR part 26, the NRC 
has processed approximately 40 FFD D&A related cases in which OI 
investigated instances of individuals violating FFD D&A procedures at 
licensee sites. These types of cases result from a range of issues 
including failed drug tests, alleged attempts to subvert FFD testing, 
alleged possession or use of illegal drugs or alcohol, or alleged 
misuse or failure to report the use of prescription drugs. Typically 
the issues are discovered, investigated by, and reported to the NRC by 
licensees using the e-reporting system. By the time the NRC implements 
the process to investigate, the licensees have imposed the appropriate 
10 CFR part 26 sanctions.
    In many regards, 10 CFR part 26 is unique in comparison to other 10 
CFR regulations; for example, explicit sanctions are specified for 
individuals who violate FFD policy. Section 26.75, ``Sanctions,'' 
specifies, in part, the minimum sanctions that licensees and other 
entities shall impose when an individual has violated the D&A 
provisions of their FFD policy (e.g., immediate unfavorable termination 
of the individual's authorization for at least 14 days for the first 
violation and 5 years for the second violation, and permanent denial of 
access for any act or attempted act to subvert the testing process). 
The requirement also states that the licensee or other entity may 
impose more stringent sanctions.
    A limited exception to the proposal to not process FFD cases is 
when NRC staff identifies an apparent breakdown of the licensee's FFD 
program itself. Any case involving an alleged breakdown of the FFD 
program itself would be reviewed and considered for an NRC enforcement 

III. Proposed Revisions

    The NRC can gain efficiency in its enforcement program if it elects 
to no longer pursue D&A cases; this process change is possible because 
10 CFR 26.75 already requires licensees to disposition individual 
violations of their FFD D&A procedures. This process change could be 
implemented by adding the following paragraph at the end of Section 
4.1, ``Considerations in Determining Enforcement Actions Involving 
    The NRC typically will not consider FFD drug and alcohol related 
violations for enforcement action unless there is an apparent 
deficiency of the licensee's FFD program.
    The proposed revision to the Policy is available in ADAMS under 
Accession No. ML16197A561.

    Dated at Rockville, Maryland, this 29th day of September, 2016.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2016-24073 Filed 10-4-16; 8:45 am]