2. Socioeconomic issues which might affect the utility adversely if the proposed "Fitness for Duty" Rule becomes law (legal, union, monetary cost, morale); 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); 4. Recommended changes in the proposed rule (i.e., inclusion of NRC personnel, application to protected versus vital areas of the plant, guarantees of effectiveness, recordkeeping); 5. Responses to NRC Commissioners' solicitation of specific comments (e.g., fitness for duty criteria, use of breath testers, scope of rule, application to NRC personnel, blood-alcohol level limits). Individual Comments And Their Resolution 1. a. Overall Agreement/Disagreement With Proposed Rule Twenty-nine (41%) of the respondents agree with the need for a "Fitness for Duty" rule either without comment or with recommendations for changes in the proposed rule. Included in this group are nine of 11 private citizens not identified with the nuclear industry, one of six private citizens identified with the nuclear industry, one of two labor unions, one of two legal firms, one utility consultant, two of nine utility suppliers, and 14 of 36 utilities responding. Recommendations are resolved under Paragraph 4 below. (Respondents: 1, 2, 3, 7, 8, 9, 10, 11, 13, 17, 21, 23, 24, 31, 32, 35, 36, 43, 44, 47, 49, 50, 58, 59, 60, 61, 65, 72, 73) . b. Forty-two (59%) of the respondents disagree with the need for a "Fitness for Duty" Ruie. Included in this group are 22 of 36 utilities, seven of nine suppliers, five of six private citizens identified with the nuclear industry, two of 11 private citizens identified with the nuclear industry, four of four professional societies identified with the nuclear industry, one of two legal firms, and one of two labor unions responding. (Respondents: 4, 5, 6, 14, 15, 16, 18, 19, 20, 22, 25, 26, 27, 28, 29, 30, 33, 34, 37, 38, 39, 40, 41, 42, 45, 46, 48, 51, 52, 53, 54, 55, 56, 57, 62, 63, 64, 66, 67, 68, 69, 70) (1) Thirty of these respondents comment that the rule is not needed since the utilities already have adequate fitness for cuty programs in operation. (Respondents: 4, 5, 6, 13, 16, 19, 22, 25, 26, 27, 28, 29, 30, 34, 38, 39, 42, 51, 54, 55, 56, 57, 62, 63, 64, 66, 67, 68, 69, 70) (2) Eight of these respondents comment that the NRC acknowledges the industry's awareness of the fitness for duty problem and its response to it, in NUREG-0903. (Respondents: 16, 28, 29, 33, 37, 48, 64, 70) (3) Thirteen of these respondents comment that the NRC has not established sufficient justification (need) for a fitness for duty rule, citing NUREG-0903, and suggesting that additional research into the issue of fitness for duty is required prior to a rulemaking action. (Respondents: 18, 20, 28, 30, 41, 48, 51, 53, 62, 64, 66, 68, 69) (Res (4) Fourteen of these respondents comment that a policy statement from the NRC to the utilities on fitness for duty would be sufficient. pondents: 6, 18, 28, 33, 41, 42, 45, 49, 53, 56, 64, 67, 68, 70) (5) Fourteen of these respondents comment that a fitness for duty rule, if issued, should be part of the proposed "Access Authorization" Rule (10 CFR § 73.56). (Respondents: 4, 5, 28, 33, 38, 39, 40, 41, 42, 45, 48, 52, 63, 69) RESOLUTION: The NRC staff recognizes alcohol and drug abuse to be a social, medical and safety problem of epidemic proportions, 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, are also prevalent in the nuclear industry. Prudence, therefore, requires that appropriate precautionary measures de 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. c., 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. Additional information concerning the economic impact of alcohol and drug abuse on absenteeism and job performance is presented on page 6 of this enclosure. 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 Drug-Related Incidents," reports a steadily increas ing 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 NRC staff has determined, therefore, that a regulation with the authority of law is required for licensees to establish written procedures to provide reasonable assurance that licensee's and its contractors' personnel with unescorted access to protected plant areas are not under the influence of alcohol, other drugs, or otherwise unfit for duty. NUREG-0903, "Survey of Industry and Government Programs to Combat Drug and Alcohol Abuse," is cited by seven of the respondents as evidence that the utilities are aware of the fitness for duty problem and are taking appropriate and adequate remedial action. NUREG-0903, in fact, contains data on 10 of 75 licensees, one of which admitted not having any written policy for handling potential fitness for duty offenders. The information contained in the NUREG on the remainder of the licensees surveyed suggests that no consistent policy for dealing with the day-to-day fitness for duty problem exists. Most utility programs reported on appear to be punitive rather than rehabilitative, and appear to focus primarily on screening new employees rather than the day-to-day behavior of the nuclear power station work force. NUREG-0903 is cited by 13 respondents, stating that the NRC has not established sufficient justification for a fitness for duty rule. The NRC recognizes alcohol and drug abuse to be a social, medical, and safety problem affecting people in almost every industry and occupational group. For example, 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, are also prevalent 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. Alternatives to the "Fitness for Duty" rule cited by respondents include a policy statement and/or combining the rule with the draft proposed 10 CFR 73.56 "Access Authorization" rule. Consideration was given by the NRC staff to incorporating the provisions of the "Fitness for Duty" rule into the behavioral observation program portion of the draft proposed "Access Authorization" rule. It was decided not to do this because broadening the scope of the proposed "Access Authorization" rule would complicate and delay this "Fitness for Duty" rule. The importance of establishing a regulation which addresses the specific issue of fitness for duty necessitates proceeding independently with the present rule. After some experience has been gained through the implementation of both the "Fitness for Duty" rule and the draft proposed "Access Authorization" rule (e.g., 2-3 years), consideration will be given to combining them. Issuing a policy statement, as a alternative to a regulation, was considered by the NRC staff as part of the Regulatory Analysis. The procedural approach selected was a broad rule since it would provide considerable latitude to the licensee while at the same time providing a regulatory basis for enforcement. In summary, the NRC staff has determined that sufficient evidence exists concerning fitness for duty to issue a broad regulation which: (1) has the full force and authority of law, (2) provides a basis for future regulatory actions and policy statements, and (3) allows each licensee to develop written procedures which take into consideration not only fairness to, and due process for its employees, but also any condition or circumstance unique to its facility. 2. Socioeconomic Impact of Rule a. Twenty respondents comment that developing and implementing written procedures as called for in the rule would cause legal and union related liabilities to the licensee. (Respondents: 5, 15, 17, 19, 22, 23, 25, 26, 28, 29, 33, 34, 42, 44, 58, 59, 64, 68, 70, 72) RESOLUTION: The NRC staff recognizes that written procedures for implementing the "Fitness for Duty" rule will raise sundry personal rights and union related issues. It is expected, however, that appropriate reviews and coordination of written procedures will be undertaken by the licensee with its legal counsel and union representatives prior to implementing its procedures. Legal and/or union issues related to fitness for duty programs are being dealt with successfully in other industries (e.g., civilian aviation, aerospace, electronics). b. Eleven respondents comment that developing and implementing written procedures called for in the "Fitness for Duty" Rule will cause substantial dollar costs to the licensee. (Respondents: 16, 23, 25, 33, 44, 46, 48, 53, 55, 58, 64) RESOLUTION: The NRC staff recognizes that developing written procedures in response to the rule will involve dollar costs. The NRC estimates that individual licensee burden to develop written procedures required by the rule will be approximately 1200 man-hours over a nine month period if no fitness for duty program currently exists at the licensee's facility. Using an hourly |