The Commissioners

The FAA has proposed amendments to 14 CFR 91.11 (46 FR 38480,
dated July 27, 1981) to include provisions that: (1) aircrew
members be considered under the influence of alcohol while having
40 milligrams of alcohol in 200 milliliters of blood (0.04 blood
alcohol concentration); and, (2) whenever the FAA Administrator
has a reasonable basis to believe that a person who acted, or
attempted to act, as an aircrew member of a civil aircraft may
have violated any section of 14 CFR 91.11, that person shall do
either or both of the following as requested by the
Administrator; (a) submit to a chemical test of the breath
and furnish the results to the Administrator, and (b) submit
to medical tests that indicate presence of other drugs in the
blood and furnish the results to the Administrator. The FAA
has also proposed amendments to 14 CFR 61.15 and 61.16 specifying
punitive action against persons who violate one or more provisions
of the amended 14 CFR 91.11. These include (a) denial of an
aircrew certificate or rating to applicants for a period of up to
1 year after conviction of any Federal or State statute relating
to alcohol or other drugs, and (b) suspension of a certificate or
rating, or permanent revocation, for refusal to submit to medical
tests for alcohol or other drugs at the request of the FAA
Administrator. It should be noted again that these proposed
amendments to FAA regulations have not yet been adopted. A
criterion-based rule of the type suggested by Commissioner
Gilinsky which specifies one criterion for fitness for duty
(0.04 blood alcohol concentration), must provide a technical
basis for that criterion. Additionally, establishing a blood
alcohol concentration criterion for fitness for duty, at least
implicitly, dictates to licensees methods required for rule
implementation (breath and other chemical tests, rather than
observed behavior).

We continue to believe, given a paucity of direct first-hand
information on the magnitude, nature and trends of alcohol and
other drug use, or emotional and physiological factors impacting
safety at nuclear power units, that a rule based on the existing
and proposed FAA approach is inappropriate. The FAA research
does not seem directly transferable to the nuclear utility
industry. It is expected that a procedures-based rule of the
type previously suggested by the staff would be implemented by
observation of behavior by supervisors. Persons displaying
abnormal behavior would be relieved from duty and taken to or
referred to an appropriate expert for analysis of the cause
of that behavior.

Recommendations: The issues raised in the December 12, 1983 memorandum
from the Secretary on the final proposed fitness for duty
rule (SECY-83-339) have been addressed in the discussion
section of this paper. The staff views and recommendations
on these issues are summarized as follows:

The Commissioners

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NRC employees included in the rule, along with
other Federal, State and local government personnel,
should be provided escorted access if they appear
unfit for duty, and the appropriate NRC Regional
Administrator, DOE official, or other State or
local government official should be immediately
notified following grant of access.

The rule should be broadly worded, rather than prescriptive with specific criteria, to allow licensees to establish procedures which are behaviorbased and which take into consideration circumstances unique to their own facilities..

Enclosure 1 presents a revised fitness for duty rule and
Enclosure 2 a statement of considerations as currently
envisaged by a majority of the Commission. The staff
wishes to note to the Commission that the statement of
considerations and regulatory analysis may have to undergo
additional revisions, perhaps substantial ones, depending
on the Commission's final decisions.

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Commissioners are asked to vote on SECY-83-339 as amended by this paper. Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Friday, March 30, 1984. New vote sheets are being provided with this paper.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Friday, March 23, 1984, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of April 2, 1984. Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.

ENCLOSURE 1

1.

REVISED FITNESS FOR DUTY RULE

A new paragraph (y) is added to 10 CFR § 50.2 to read as follows: (y), "Vital area" means any area which contains any equipment, system, device, or material, the failure, destruction, or release of which could directly or indirectly endanger the public health and safety by exposure to radiation, or any equipment or systems which would be required to function to protect public health and safety following such failure, destruction, or release.

2.

A new paragraph (z) is added to 10 CFR § 50.54 to read as follows:

(z) Access to vital areas and fitness for duty.

(1) Each licensee with an operating license issued under 10 CFR § 50.21(b) or § 50.22 of this Part for a nuclear power unit shall establish and implement the written procedures described in subparagraphs (z)(1) to (z)(6) of this section by [insert date 9 months after the effective date of this rule] or by the date of issuance of an operating license, whichever is later. A licensee which cannot meet this deadline must submit to the Director of Nuclear Reactor Regulation a request for an extension no later than 90 days before the deadline and demonstrate good cause for the request. (2) These procedures shall apply to all persons (including Commission, Department, and other Federal, State and local government employees) with escorted or unescorted access to vital areas.

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(3) These procedures shall provide reasonable assurance that any person in a vital area, while performing any duty in that area, is not:

(i) Unfit for duty due to the influence of alcohol;

(ii). Unfit for duty due to the influence of any drug or drugs that could affect his or her faculties in any way contrary to safety; or

(iii) Unfit for duty because of any other mental or physical impairment that could affect his or her performance in any way contrary to safety.

(4) A person who is unfit for duty shall be denied access to a vital area, except as specified in subparagraphs (z)(5) and (z) (6) of this section. (5) If it appears that any Commission employee with unescorted or escorted access to a vital area is unfit for duty, as described in subparagraph. (z)(3) of this section, that person shall continue to have the right of immediate access to vital areas of the plant except that:

(1) If that person has unescorted access, the licensee shall immediately provide that person with escorted access; and

(11) Whatever the access status of a Commission employee, the licensee shall immediately notify the appropriate NRC Regional Administrator after granting access.

(6) If it appears that any Department or other Federal, State, or local government employee with unescorted or escorted access to a vital area is unfit for duty, as described in subparagraph (z)(3) of this section, that person shall continue to have whatever right of prompt access is specified under applicable Federal, State or local law, except that:

(i) If that person has unescorted access, the licensee shall immediately