In your recent comments on SECY 85-21B you asked for the staff's views as to
whether the proposed policy statement on fitness for duty would provide any
basis for Commission enforcement action should a licensee fail to conform to
the Edison Electric Institute or any other reasonable fitness for duty program.
A policy statement does not by itself expand the Commission's enforcement
authority or provide any additional bases for enforcement action. Because
it is not adopted in accordance with the rulemaking procedures of the Admini-
strative Procedure Act, a policy statement may not affect substantive
obligations; rather, it serves as a statement of purpose or future intent
to deal with an issue in a particular way.

As was noted in the Policy Statement on Training and Qualification, however,
nothing in the policy statement limits the authority of the Commission to
issue orders, call enforcement meetings, suspend licenses or take other
enforcement action when regulatory requirements are not met or a safety
problem is found. However, NRC has no specific requirements which require
licensee personnel to avoid any use of alcohol or drugs that might impair
their performance and has no legal requirements for licensees to develop and
maintain fitness for duty programs. Accordingly, any enforcement action by
way of orders or license modifications, suspensions and revocations could not
be based on alcohol or drug use per se or the simple failure by a licensee
to develop or maintain a fitness for duty program. Instead, an additional
showing would need to be made that the alcohol or drug use at issue or the
failure to develop or maintain a fitness for duty program caused or has the
potential for causing a safety problem. Civil penalties would not be available
for alcohol or drug use without additional action by way of orders or license
amendments or modifications establishing specific requirements in this area.
The Office of General Counsel agrees with these views.

For:

From:

Subject:

Purpose:

Background:

The Commissioners

William J. Dircks

Executive Director for Operations

REVISED POLICY STATEMENT ON FITNESS FOR DUTY OF
NUCLEAR POWER PLANT PERSONNEL

To provide the Commission with a revised draft Policy Statement on Fitness for Duty of Nuclear Power Plant Personnel.

During the October 22, 1985 meeting with staff on fitness for
duty programs and in the subsequent Staff Requirements Memorandum
of November 8, 1985, the Commission directed that the proposed
policy statement (SECY-85-21) be revised to reflect certain
Commission expectations regarding industry programs and to
clarify the matter of enforceability. The Commission indicated
that the revised policy statement should include:

- A statement of the Commission's expectations in
terms of the broad objectives of the industry
program.

- A statement of the Commission's expectation that
industry implement and self-enforce the provisions
(including the disciplinary guidelines) of the EEI
Guide.

- A statement that the Commission expects industry
to include a program of periodic or random chemical
testing as a part of fitness for duty programs.

- Provisions for including construction activities
under fitness for duty programs.

- Clarification of the issue of enforceability of
the policy statement since, absent a rule, there
are no specific NRC requirements for fitness for
duty programs.

CONTACT: James G. Partlow, IE
Ext. 24614

79-323 0 - 88 - 12

The Commissioners

Discussion:

Recommendation:

A revised draft Policy Statement on Fitness for Duty of
Nuclear Power Plant Personnel which incorporates the above
elements is included as Appendix A to this paper. Other
modifications have been made to update the Policy Statement.
Deletions from the original statement are lined through
and additions are in capital letters. The revised Policy
Statement has not yet been discussed with NUMARC. In
developing the revised statement, the staff has utilized
the transcript of the October 22 meeting, the November 8
Staff Requirements Memorandum and additional memoranda
provided by Commissioner Bernthal (October 31) and
Commissioner Asselstine (November 13).

In connection with chemical testing programs, the Commission
should note that a Federal Judge recently issued a temporary
restraining order barring the railroad industry from
continuing to implement the Federal Railroad Administration's
program requiring drug and alcohol testing. The Judge
said that there was a reasonable probability that the
tests violated workers' constitutional rights of privacy.
See News Announcement in Enclosure 2. On the other hand,
several federal courts recently have allowed a chemical
testing program where an agency had a compelling interest,
i.e., the public was at risk, and was using reasonable
standards to implement its program. See, for example,
Local One, Amal. Lith. of America v. NLRB, 729 F. 2d 172
(Feb. 24, 1984), McDonell v. Hunter, 612 F. Supp. 1122
(July 9, 1985), and Shoemaker v. Handel, 405 F. Supp. 750
(September 9, 1985).

That the Commission review the revised Policy Statement.
If acceptable to the Commission, the Policy Statement
will be provided to the NUMARC Working Group for review
and discussion with staff. The resulting final recommended
Policy Statement will be forwarded to the Commission for
its action.

NOTE: That the matter of fitness for duty at other NRC
Ticensed facilities will be addressed in a separate paper.