Various methods of establishing a program to provide reasonable assurance that personnel with unescorted access to the protected area of commercial and industrial facilities licensed under 10 CFR 50.21(b) or 10 CFR 50.22 were considered. The procedures used by the Federal Aviation Administration (FAA) were reviewed for their applicability to nuclear facilities as were the recent changes proposed to the program. The current FAA regulations state that:

(a) No person may act as a crew member of a civil aircraft

(1) Within 8 hours after the consumption of any alcoholic beverage; (2) While under the influence of alcohol; or

(3) While using any drug that affects his faculties in any way

contrary to safety."

Consideration was also given to incorporating the provisions of this final rule into the behaviorial observation program which is being developed as a part of the draft proposed changes to 10 CFR 73.56 (Access Authorization Rule). This was not done because it is felt that broadening the scope of the draft proposed "Access Authorization" rule would complicate and delay this "Fitness for Duty" rule. The importance of establishing a regulation which addressed the specific issue of fitness for duty necessitated proceeding independently with this "Fitness for Duty" rule. After some experience has been gained through the implementation of both this final "Fitness for Duty" rule and the proposed "Access Authorization" rule (e.g., 2-3 years), consideration will be given to combining or coupling them in some way.

Extending the rule to nuclear power plants under construction. determined by the staff that these plants should not be included in the rule since they present no potential adverse effect on the public health and safety due to a radioactive release.

A broad administrative approach is chosen to accomplish this rulemaking action. Each licensee will be required to establish and implement procedures which provide reasonable assurance that the licensee's and its contractors' personnel with unescorted access to protected areas, while in those protected

areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty. The category of personnel was restricted to those personnel with unescorted access rather than anyone with access to a protected area because an individual with unescorted access may have the opportunity to perform an unobserved action which could effect the public health and safety. The detailed method of implementing this requirement is left to the licensee, rather than issuing a very detailed prescriptive regulation, in order to allow each licensee to focus on its own situation and provide a solution which takes into consideration its employees and any circumstances unique to its facili Written procedures developed by licensees would probably include the following: (1) a statement of responsibilities of the program coordinator, managers, supervisors, and employees who come in contact with persons with unescorted access to protected areas; (2) an observation procedure; (3) a procedure (diagnosis, referral, return to duty) for assisting individuals who meet the criteria for alcohol/drug abuse or emotional instability; (4) an administrative procedure for processing individuals who refuse assistance and/or who wish to exercise their appeal rights; and (5) training provisions for all personnel and management to acquaint them with the licensee's fitness for duty procedures. Additionally, an industry task force, staffed by representatives from the Institute of Nuclear Power Operations (INPO), Edison Electric Institute (EEI) and the utilities, is developing a set of standard guidelines for licensees to use in responding to this rule.

3. PROCEDURAL APPROACH

3.1 Procedural Alternatives

3.1.1 Specific Regulation--issue a regulation which requires licensees to assure that personnel with unescorted access to protected areas are fit for duty as specifically defined in the regulation. Such a regulation would have to specify, among other things, conditions of fitness for duty (e.g., blood-alcohol level), use of other controlled/non-controlled drugs, and revocation, suspension or modification of an operating license.

3.1.2 Broad Regulation--issue a regulation which requires licensees to assure that personnel with unescorted access to protected areas to be fit for duty in accordance with general guidelines.

3.1.3 Policy Statement--issue a Commission policy statement which delineates Commission policy regarding fitness for duty of personnel with unescorted access to protected areas.

3.1.4 No Change--maintain status quo. The NRC does not have regulations which specifically address use of alcohol and other drugs or the broader issue of fitness for duty of persons with unescorted access to protected areas at nuclear power stations.

3.2 Value/Impact of Procedural Alternatives

The value to the Commission of alternative (1), a specific regulation, is that it would provide a good regulatory basis for enforcement. The impact on the NRC of alternative (1) is that a regulation which attempts to fully define all instances when an individual should be considered unfit for duty, while protecting the rights of the individual involved, would necessarily be cumbersome and less than an optimal approach for any particular licensee facility. The value to the Commission of alternative (2), a broad regulation, is that it would provide some regulatory basis for enforcement, it would provide a basis for future regulatory guides, and it would allow each licensee to develop procedures which take into consideration not only fairness to and due process for its employees but also any conditions or circumstances unique to its facility. The impact on the Commission of alternative (2) is that it would be harder to enforce than a specific regulation since it would not require industry-wide standardization of their fitness-for-duty procedures. However, an industry task force staffed by representatives from the Institute of Nuclear Power Operations (INPO), Edison Electric Institute (EEI) and the utilities, is developing a set of standard guidelines for licensees to use in responding to this type of broadly worded rule.

The value to the Commission of alternative (3), a policy statement, is it would provide the greatest degree of flexibility for implementation since conformance to the policy by licensees would be voluntary. The impact on the Commission of alternative (3) is that it would not provide a regulatory basis for enforcement.

The value to the Commission of alternative (4), no change in existing regulations, is it would eliminate the requirement for allocating two man-days per year per plant among NRC licensing and inspector personnel. The impact on the Commission of alternative (4) is that the Commission may be perceived as indifferent to alcohol and drug abuse at nuclear power stations. At present, the Commission has no regulations which specifically address alcohol and drugs or the broader issue of fitness for duty.

3.3 Decision on Procedural Approach

The Commission should publish a broad regulation which would require licensees to provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty. Commission enforcement of the broadly worded rule should be undertaken using the general guidelines described in paragraph 2 of this Regulatory Analysis.

4. STATUTORY CONSIDERATIONS

4.1 NRC Regulatory Authority

Authority for this final action is derived from sections 103, 104 and 161 of the Atomic Energy Act of 1954 and from Section 201 of the Energy Reorganization Act of 1974.

4.2 Need for NEPA Statement

An environmental impact statement is not required since, under 10 CFR 51.5(d)(3), this final action is not a major action that may significantly affect the quality of the human environment.

EXCLOSURE "D"

RESOLUTION CF PUBLIC COMMENTS ON PROPOSED RULE

CHANGES TO 10 CFR 50 PARTS 50.2 AND 50.54

The following paragraphs report resolution of public comments received on the proposed "Fitness for Duty" Ruie (Federal Register, 47FR33980, August 5, 1982). The announced comment period expired October 4, 1982. A total of 73 responses were received, 43 by the end of the announced comment period, and an additional 30 responses by the Close of Business November 5, 1982. A11 73 responses are included in the analysis. Respondent Control (Docket) Numbers (1-73) and associated Identifiers are listed in the attachment at the end of this Enclosure.

Respondent (Commenter) Profiles

A total of 73 responses were received on the proposed "Fitness for Duty" rule. Thirty-six (49%) were received from the utilities; nine (13%) from utility suppliers (e.g., vendors, contractors, consultants); two (3%) each from unions and legal counsel associated with the nuclear industry; four (6%) from professional societies associated with the nuclear industry; one (1%) from utility consultants; and 19 (26%) from private citizens. Of this latter group, six identified themselves with the utilities (e.g., trainees, operators, instructors, maintenance personnel), and two did not comment on the proposed rule (i.e., requested extensions to the comment period which were denied).

Overview of Comments

Comments received on the proposed "Fitness for Duty" rule from among 71 usable responses involve 310 comments concerning 16 issues grouped under the following five headings:

1. Overall agreement or disagreement with the proposed rule citing utility awareness or non-awareness of and action to resolve the fitness for duty issue;