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The Commissioners

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.

Discussion: The NRC does not have regulations which specifically address use

of alcohol and other drugs or the broader issue of fitness for
duty of persons with unescorted access to protected areas at
nuclear power stations. Since operation of a nuclear power sta-
tion by personnel not fit for duty could degrade the licensee's
abll to operate tht facility in a safe manner, development of
a requirement concerning the determination of fitness for duty
with respect to the consumption of alcoholic beverages, use of
other drugs, and mental or physical impairments which could
affect a person's faculties In a way contrary to safety is neces-
sary to protect the health and safety of the public.

The subject final amendment will require that licensees operating
commercial power reactors licensed under 10 CFR 50.21(b) or 50.22
establish and implement written procedures designed 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 or
other drugs or otherwise unfit for duty.

Personnel 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 other-
wise unfit for duty..." 1s intended to require the licensee to
consider other factors when determining an Individual's fitness
for duty, such as the effects of fatigue, stress, illness, and
physical impairments.

Consideration was given to Incorporating this "Fitness for Duty"
rule into the draft proposed revision to 10 CFR 73.56 (Access
Authorization Rule). Because of the different orientations of
the two rules, i.e., trustworthiness (S 73.56) versus fitness
(S 50.54), and the need to rapidly establish a regulatory basis
from which to address the fitness for duty issue, the decision
was made to keep the two rulemakings separate, at least initially.
After gaining experience from the implementation and use of these
rules (e.g., 2-3 years), the staff will reconsider whether these
rules should be combined or coupled In some way. Additionally,

Tht Commissioners 4

the sUff considered extending the rule to nuclear power plants under construction. It was determined hy the staff that these plants need not be Included In the rule since construction presents no Immediate adverse effect on the public health and safety due to a radioactive release. Additionally, government and Industry quality assurance programs at construction sites would be expected to minimize the potential latent effects of poor workmanship, due to non-fitness for duty, on operating plant safety.

Recommendations: That the Commission:

1. Approve publication of the final rule as set forth In Enclo-
sure "A", to amend 10 CFR 50.2 and 50.54 by requiring that
licensees operating commercial power reactors licensed under
10 CFR 50.21(b) or 50.22 establish and Implement adequate
written procedures designed to provide reasonable assurance
Thai all Persons with UneSCorted access to protected areas,
while in tnose prBteeiea areas, are1 nfll (L) Under the irfTu-
eMe 8f alConol, HI unqer tne influence or any other drugs
"that could affect their faculties in any way contrary to
safety, or HI otherwise unfit for duty because of mental or
pfTyilCal impairments which could affect their performance in
any way contrary to iSfttf.

2. In order to satisfy the requirements of the Regulatory Flexi-
bility Act, 5 U.S.C. 605(b), certify that this final rule
will not have a significant economic impact on a substantial
number of small entitles. This certification Is included in
the enclosed Federal Register notice.

3. Note:

a. That, in accordance with 10 CFR 51.5(d)(3) neither an environmental Impact statement nor a negative declaration need be prepared in connection with this rulemaking action since the amendment is nonsubstantive and insignificant from the standpoint of environmental impact.

b. That the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works and the Subcommittee on Energy and Power of the House Committee on Interstate and Foreign Commerce will be Informed.

c. That ADM will send copies of the final rule to all affected licensees and other Interested persons following Commission approval.

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d. This rule contains Information collection requirements that were reviewed and approved by the Office of Management and Budget.

e. That a public announcement will be Issued (Enclosure "6").

f. A Regulatory Analysis Is attached as Enclosure "B".

g. That the Chief Counsel for Advocacy of the Small Business Administration will be Informed of the certification and the reasons for 1t as required by the Regulatory Flexibility Act.

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Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Wednesday, August 31, 1983.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Wednesday, August 24, 1983, 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 September 5, 1983. Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.

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SUBJECT:

CONSULTATION ON REFERRAL TO THE DEPARTMENT OF JUSTICE (Case No. 3-85-013)

OGC has reviewed your draft referral letter to DOJ provided to us by memorandum dated April 16, 1986. The referral is based on possible violations of 18 U.S.C. 1001 (material falsification) and 371 (conspiracy). We will discuss them in turn.

Violation of 18 U.S.C. 1001

Apparently, we misinterpreted your earlier letter when we concluded that you were proposing to make a referral based on a possible false statement by omission. Your cover memorandum to us clarifies that you intend to refer for an actual false statement.

We consider the proposed referral in light of the elements of the 1001 crime which we set forth in our March 5, 1986 memorandum:

This is less clear in the text of the revised draft referral where you say that the notification "omitted certain information and overtly misrepresented the known facts", p. 2. This suggests that the notification was not false as far as it went but became false as the result of an omission. You also state in a summing-up paragraph that "it appears there was a concealment of at least part of the information necessary to make an informed agency decision". p. 3. In any event, we accept the referral as you intend it and review it on that basis.

Contact:

Marjorie Nordlinger, OGC
X41493

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