SUMMARY: The Commission is amending its regulations to require that certain licensees establish and implement written procedures designed 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. The Commission has approved this rule because of a concern that certain persons could become unfit for duty due to the effects of substances such as alcohol or other drugs and, thereby, their performance could adversely impact the health and safety of the public. The result of the rule will be the implementation of fitness for duty procedures industry-wide that are designed to provide greater assurance of safer operation of licensed facilities. Licensees issued operating licenses for commercial power reactors under 10 CFR 50.21(b) or 50.22 will be required to develop and implement written procedures within 9 months after the effective date of the rule, or the date of issuance of an operating license, whichever is later. Licensees who cannot meet the 9-month deadline must submit, not less than 90 days prior to that deadline, a request for an extension to the Director of the Office of Nuclear Reactor Regulation and demonstrate good cause for the request. [7590-01] EFFECTIVE DATE: FOR FURTHER INFORMATION CONTACT: Thomas G. Ryan, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, D. C. 20555, telephone (301)443-7942. SUPPLEMENTARY INFORMATION: 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 appropriate precautionary measures be imposed to reduce the probability of a person under the influence of alcohol, drugs, or otherwise unfit for duty either causing an accident or decreasing the effectiveness of the response to an accident. Alcohol and drug abusers' job performance can be expected to be negatively affected due to 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 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., prior to coming on duty. Drugs other than alcohol such as cocaine and hashish require as much as 24-72 hours to metabolize. A recent Tennessee Valley Authority (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 (EEI) member companies operating nuclear stations had no programs to deal with this issue. More recently, NRC Inspection and Enforcement (IE) Information Notice No. 82.05, "Increasing Frequency of [7590-91} Drug-Related Incidents," reports a steadily increasing number of drugrelated 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 which. would require licensees to establish and implement written procedures to 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, other drugs, or otherwise unfit for duty. The rule (amendment to 10 CFR 50.54) will apply to persons with unescorted access to protected areas in facilities of licensees issued operating licenses under 10 CFR 50.21(b) or 50.22. This category of personnel was chosen because persons with unescorted access to a protected area may adversely affect the health and safety of the public through an unobserved act, whether intentional or inadvertent. Persons would be considered unfit for duty if their faculties were affected in a way contrary to safety by substances such as alcohol or other drugs. Additionally, the phrase "...or otherwise unfit for duty...," which is included in the rule, is intended to require that licensees consider the effects of other factors such as fatigue, stress, illness, and physical impairments when determining an individual's fitness for duty. The rule will require licensees operating commercial power reactors licensed under 10 CFR 50.21(b) or 50.22 to establish and implement procedures to assure that personnel with unescorted access to protected areas are fit for duty. The NRC estimates that individual licensee burden to develop written procedures required by the rule will be approximately 1,200 man-hours over a 9-month period if no fitness for duty program currently exists at the licensee's facility. The 9-month (1200-hour) program development period resulted from discussions with fitness for duty program personnel in government and private industry. At this time, establishment of specific criteria to be used to determine fitness for duty and specific methods of implementation of this requirement are being left to the licensee. This will allow each licensee to develop procedures which take into consideration not only fairness to, (7590-01] and due process for, its employees, but also any conditions or circumstances unique to its facility. Therefore, the rule is broadly worded. On August 5, 1982, the NRC published in the Federal Register (47 FR 33980) the proposed "Fitness for Duty" rule amending §§ 50.2 and 50.54 of 10 CFR Part 50. A total of 73 responses containing 310 comments were received, all 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 NW., 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; 2. Socioeconomic issues (legal, union, monetary cost, morale) which might be raised if the rule is promulgated; 3. Implementation issues which should or should not be resolved prior to 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 power station, guarantees of effectiveness, recordkeeping). Approximately two-thirds of the respondents disagreed with the need for a rule, stating in essence that: (1) the NRC has not established a sufficient need for the rule, (2) the rule should be part of a draft proposed 10 CFR 73.56, "Access Authorization" rule, and (3) the utilities are aware of the fitness for duty issue and are taking appropriate remedial action. Therefore, the Commission is issuing a broad regulation 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. Several respondents commented that the development and implementation of "fitness for duty" procedures would cause the licensee legaiand union-related liabilities, significant monetary costs, and would [7590-01] The Commission believes have a deleterious effect on employee morale. the licensee, its legal counsel, and unions can resolve internal legal and union issues. Fitness for duty programs are currently being implemented without significant legal or union liabilities by almost all Federal and State government agencies, and the majority of regulated and non-regulated U.S. industries. Secondly, monetary costs should be minimal for utilities which currently have in operation some form of fitness for duty program. Comments concerning rule implementation issues 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 respondMost of these expressed a need for definitions and standards, while objecting to the use of breath testers. As stated above, the Commission believes that a broadly worded rule is appropriate which allows the licensee to develop specific standards and criteria for fitness for duty. The rule is broadly worded in keeping with the belief that each licensee should establish specific procedures and techniques for determining fitness for duty (e.g., breath testers, psychological tests) taking into consideration circumstances unique to its facility. 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. Five 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 |