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provide that person with escorted access; and

(ii) Whatever the access status of that person, the licensee shall immediately

notify an appropriate Federal, State or local government official after

granting access.

ENCLOSURE 2

REVISED STATEMENT OF CONSIDERATIONS FOR

SUPPLEMENTARY INFORMATION:

FITNESS FOR DUTY RULE

Background

The Commission recognizes alcohol and drug abuse to be a social, medical, and safety problem affecting people in almost every industry and occupational group. For example, the National Institute on Alcohol Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports that 46% of all non-fatal and 40% of all fatal U.S. industrial accidents involve alcohol, at an annual cost of $12-15 billion. Given the pervasiveness of the problem in our society, it seems reasonable to assume that alcohol and drug abuse, as well as other emotional and psychological factors, also exists in the nuclear industry. Prudence, therefore, requires that the Commission impose appropriate precautionary measures to reduce the probability that a person, who is under the influence of alcohol, drugs, or who is otherwise unfit for some task involving a nuclear power reactor, may cause an accident or react inadequately to an accident.

The job performance of alcohol and drug abusers can be expected to be hindered by the presence of chemicals in their blood stream. For example, 4 ounces of alcohol in the blood stream of a 165-pound male requires approximately 12 hours to metabolize. This is one reason that other regulatory agencies (e.g., U.S. Department of Transportation) mandate specific periods of abstinence (e.g., 4 or 8 hours) for interstate truck drivers, commercial airline pilots, etc., before these persons come on duty. Drugs other than alcohol, such as cocaine and hashish, require as much as 24-72 hours to metabolize.

The Tennessee Valley Authority's (TVA) 1979 Report on its Alcohol and Drug Dependency Program states that the program served 350 employees during that year (one out of every 143). TVA estimates that its annual cost due to alcohol abuse alone is approximately $18.5 million. As recently as mid-1981, approximately one-third of the Edison Electric Institute's (EEI) member

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companies operating nuclear stations had no programs to deal with this problem. More recently, NRC Inspection and Enforcement (IE) Information Notice No. 82.05, "Increasing Frequency of Drug-Related Incidents," reported a steadily increasing number of drug-related arrests and terminations being reported by the nuclear industry since 1978. The reported incidents are widespread geographically and involve power reactor sites in each of the five NRC regions. The Commission has determined, therefore, that a regulation is necessary to deal with this problem.

Proposed Rule

On August 5, 1982, the NRC published in the Federal Register (47 FR 33980) its proposed "Fitness for Duty" rule, amending §§ 50.2 and 50.54 of 10 CFR Part 50. The proposed rule would have required licensees to establish and implement written procedures to provide reasonable assurance that their and their contractors' personnel with unescorted access to protected areas, while in those protected areas, are not under the influence of alcohol, other drugs, or otherwise unfit for duty. Various questions were posed in the proposed rule to which the Commission wanted responses in order to draft a final rule.

Comments

A total of 73 responses containing 310 comments were received, ali of which were evaluated in developing the final rule. The following discussion highlights the major issues raised in the comments received and their resolution (comments received and a more complete discussion of their resolution are available for review in the Commission's Public Document Room at 1717 H Street N.W., Washington, D.C. 20555).

Comments were received on 16 issues grouped under the following four headings:

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

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2. Socioeconomic issues (legal, union, monetary cost, morale) which might be raised if the rule is promulgated;

3. Implementation issues which should be addressed before

issuance of the final rule (e.g., definition of terms, use of breath testers and other diagnostic techniques, impairment standards); and

4. Recommended changes in the proposed rule (i.e. inclusion of NRC personnel, application to protected versus vital areas of the nuclear power unit, guarantees of effectiveness, record keeping).

Approximately two-thirds of the respondents disagreed with the need for a rule, stating in essence that: (1) NRC has not established a sufficient need for the rule, (2) the rule should be part of the so-called "Access Authorization" rule, now a proposed draft 10 CFR § 73.56, and that (3) the utilities are aware of the fitness for duty issue and are taking appropriate remedial action.

Response to Comments

The Commission believes that a problem exists which can be solved by the rule, that not all of its licensees are taking appropriate remedial action, and that this rule should be promulgated separately from the Access Authorization rule which deals with other issues. It also believes that a too rigid and prescriptive rule will not resolve the problem adequately. Therefore, it is issuing a broad regu 7 which allows each licensee to develop written procedures that take into consideration not only fairness to, and due process for, its employees, but also any condition or circumstance unique to its facility. The amendment to 10 CFR § 50.54 will apply to all persons with unescorted or escorted access to vital areas in facilities of licensees issued operating licenses under 10 CFR § 50.21(b) or § 50.22, f.e, licensees of nuclear power units.

Several respondents comment that the development and implementation of "fitness for duty" procedures would cause a licensee legal and union-related liabilities, significant monetary costs, and would have a deleterious impact on employee morale. The Commission believes the licensee, its legal counsel, and unions can resolve internal legal and union issues. Fitness for duty

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programs are currently being implemented without significant legal or union liabilities by most Federal and State government agencies, and the majority of regulated and non-regulated U.S. industries. Additionally, monetary costs should be minimal for utilities which currently have in operation some form of fitness for duty program.

Comments about implementation issues. involving the rule, such as definition of terms, use of diagnostic tools such as breath testers, or establishment of fitness for duty standards, were received from 58 of 73 respondents. Most of these expressed a need for definitions and standards and objected to the use of breath testers.

Six specific recommendations for changes in the proposed rule were received from 56 of the 73 respondents. These involve: (1) changing the word "ensure" to the term "provide reasonable assurance;" (2) extending the rule to all persons with unescorted access, thereby including NRC personnel as well as personnel of the Department of Energy, and other Federal, State and local government agencies; (3) limiting the rule to "vital" areas, rather than having it apply to the more general "protected" areas of the plant; (4) eliminating the requirement for maintaining records of written procedures for the life of the plant; (5) providing time for implementation; and (6) wording the rule broadly and not making it prescriptive.

The Commission has accepted all of the above recommendations, each of which has been incorporated into the final rule, and had made some additional changes.

First, the word "ensure" was changed to the term "provide reasonable assurance".

Second, NRC employees, along with other Federal, State and local government employees, have been included in the rule. In fact, the rule has been extended to cover all persons with access to vital areas--whether that access is unescorted or escorted. This category of personnel was chosen because any person with access to a vital area may adversely affect the health and safety of the public. Provisions have been added, however, to make clear that NRC employees with unescorted or escorted access shall continue to have immediate access to vital areas of a licensed nuclear power unit, except that the licensee