[Federal Register Volume 59, Number 90 (Wednesday, May 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11294]
[[Page Unknown]]
[Federal Register: May 11, 1994]
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
10 CFR Part 26
Consideration of Changes to Fitness-For-Duty (FFD) Requirements
AGENCY: Nuclear Regulatory Commission.
ACTION: Request for Information and Comments.
-----------------------------------------------------------------------
SUMMARY: In response to a Federal court decision, the Nuclear
Regulatory Commission (NRC) is evaluating its approaches for
designation of persons who should be subject to the random drug testing
at nuclear power plants, in particular whether employees without direct
safety-related duties (e.g., clerical staff) must be subject to random
testing. In the evaluation, the NRC staff identified several issues
that have a significant bearing on whether the current approach should
be revised. Public comments are requested on these issues to aid the
NRC staff in completing their evaluation. If any changes are developed
to current regulations as a consequence of this evaluation, these
proposed changes will again be published in the Federal Register for
public comments. If a revised rule is later adopted, these changes
would apply to all licensees authorized to construct or operate nuclear
power reactors and to all licensees authorized to possess, use, or
transport Category I nuclear material.
DATES: The comment period expires August 9, 1994. Comments received
after this date will be considered if it is practical to do so, but the
Commission is able to assure consideration only for comments received
on or before this date.
ADDRESSES: Mail written comments to: U.S. Nuclear Regulatory
Commission, Washington, DC 20555, Attention: Docketing and Services
Branch.
Deliver comments to: 11555 Rockville Pike, Rockville, Maryland
between 7:30 a.m. and 4:15 p.m. on Federal workdays.
Copies of the NRC staff's report, ``Evaluation of Scope of Persons
Subject to Random Drug Testing'' (Enclosure 1 to SECY-94-016), and
comments received may be examined (and/or copied for a fee) at the NRC
Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC.
Copies of NUREG/CR-1879, NUREG/CR-5227, and Supplement 1 to NUREG/
CR-5227 may be purchased from the Superintendent of Documents, U.S.
Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082
or from the National Technical Information Service, 5282 Port Royal
Road, Springfield, VA 21161. A copy may be examined (and/or copied for
a fee) in the NRC Public Document Room, 2120 L Street NW. (Lower
Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: Charles H. Hendren, Safeguards Branch,
Division of Radiation Safety and Safeguards, Office of Nuclear Reactor
Regulation, U.S. Nuclear Regulatory Commission, Washington, DC, (301)
504-3209.
SUPPLEMENTARY INFORMATION:
Background
In International Brotherhood of Electrical Workers (IBEW) v. NRC,
966 F.2d 521 (9th Cir. 1992), the United States Court of Appeals for
the Ninth Circuit upheld the NRC's denial of a request by the IBEW on
behalf of Diablo Canyon's nuclear workers for an exemption from NRC's
random drug-testing requirements. The labor union requested the
exemption for bargaining unit members in clerical, maintenance, and
warehouse positions. While declining to upset the exemption denial on
the record before the court, the three-judge panel questioned the NRC's
justification for imposing random drug tests on workers (particularly
routine clerical workers) with no direct safety functions and no
authorized unescorted access to the vital areas of the plant. (The
Diablo Canyon administrative building is in the protected area, and
administrative workers are subject to random drug testing because they
have unescorted access to the protected area. A number of other plants
also have administrative buildings inside their protected areas.)
Because the Court of Appeals affirmed the exemption denial, the NRC
is under no immediate legal obligation to take any action. However, the
NRC believes that a careful study of the issue raised by the court is
in order. Therefore, the NRC staff conducted an initial study,
``Evaluation of Scope of Persons Subject to Random Drug Testing''
(Enclosure 1 to SECY-94-016), which is available in the Public Document
Room as specified in the ADDRESSES portion of this Notice. This study
evaluated issues relative to random drug-testing of clerks,
secretaries, or other employees who have unescorted access to a nuclear
plant's protected area, but whose own jobs are not directly safety-
related and provide no opportunity for precipitating or escalating a
safety-related incident at a nuclear power plant.
Before the effective implementation date of the Fitness-For-Duty
(FFD) Rule (January 3, 1990), licensees had various programs to control
substance abuse. However, these programs were not uniform in their
procedures, testing methods, standards, or sanctions for substance
abuse. Most of the programs did include (1) preemployment drug testing,
(2) for-cause drug testing, (3) employee assistance programs, (4)
behavioral observation, and (5) some type of training on the problems
associated with substance abuse. Not all licensees had random drug
testing as an element of their program; in some cases, random testing
was precluded because of union intervention or prohibition by State
laws.
In developing the FFD Rule, the scope of random drug testing was
one issue that received considerable attention. In the Federal Register
notice for the proposed rule published on September 22, 1988 (53 FR
36795), the Commission solicited comments on the appropriateness of the
worker categories identified for testing. At 53 FR 36817, the
Commission indicated that it was proposing that the rule apply to all
persons who have been granted unescorted access to protected areas
because (1) current programs are implemented in accordance with the
Commission's Policy Statement on Fitness-for-Duty of Nuclear Power
Plant Personnel published on August 4, 1986 (51 FR 27921), which
applies to all persons within protected areas at nuclear power plants;
(2) these persons could introduce and sell/distribute drugs in the
workplace; and (3) any person under the influence of these substances
could cause a safety hazard, if not to the general public, to the user
and to fellow workers.
Many of the public comments on the proposed rule addressed the
scope of random testing. Most comments supported random testing for all
persons granted unescorted access to protected areas. However, a
considerable number of comments objected to random testing provisions
of the rule. A number of the comments asserted that random testing was
unnecessary and that many of the individuals granted unescorted access
to protected areas have no potential for precipitating or escalating a
safety-related incident. Some comments recommended that only those
workers who may potentially affect the health and safety of the public
be covered. For the final rule, the NRC chose not to reduce the scope
of persons subject to random testing.
Currently, the FFD Rule requires licensees authorized to operate or
construct a nuclear power reactor to implement an FFD program that
applies to ``all persons granted unescorted access to protected areas,
and to licensee, vendor, or contractor personnel required to physically
report to a licensee's Technical Support Center (TSC) or Emergency
Operations Facility (EOF) in accordance with the licensee's emergency
plans and procedures.'' Licensees authorized to possess, use, or
transport formula quantities of nuclear material were recently required
to initiate FFD programs and are not included in this analysis. Persons
who come under the FFD program are subject to the drug testing
provisions, which include random drug tests.
Discussion
Random drug testing involves two distinct functions: (1) Random
selection of persons to be tested, and (2) collection and analysis of
test specimens. The random selection process is used to ensure that all
persons subject to drug testing will have an equal probability of
selection for testing at any time. Random drug testing is also a very
strong deterrent to substance abuse.
In developing the FFD Rule, the NRC decided to specify random drug
testing because of a concern about the threat that substance-impaired
workers posed to the public health and safety. Based upon comments
received during rulemaking, the Commission concluded that all workers
with unescorted access to protected areas of operating nuclear power
plants should be included within the scope of the rule. However, some
workers have argued that they do not perform safety-related functions
and have now questioned whether random testing is an undue encroachment
on individual expectations of privacy. See International Brotherhood of
Electrical Workers, Local 1245 v. NRC, 966 F. 2d 521 (9th Cir. 1992).
Other viewpoints contend that expectations of privacy are diminished
when workers apply for and accept jobs in the nuclear industry because
job applicants willingly agree to significant privacy encroachments
including preemployment urinalysis tests, detailed background
investigations, security and fingerprint checks with the Federal Bureau
of Investigation, credit checks, and psychological assessments.
Accordingly, the Commission is now reassessing the scope of random
urinalysis testing as applied to workers without safety-related duties
to ensure a proper balance between safeguarding individual rights and
the Commission's responsibility to protect public health and safety.
At nuclear power reactors, the safety risks from someone using
illegal drugs or abusing alcohol arise from the potential for that
person to inadvertently or deliberately take actions that could affect
plant safety. The safety risks from inadvertent acts primarily involve
impairment caused by substance abuse and the effect of that impairment
on the person's ability to perform safety-related functions. Although
the Commission has no information that would indicate that a person is
more susceptible to coercion or blackmail due to drug abuse than from
any other activity, there is a perception that the safety risks from
deliberate acts come from the susceptibility of a substance abuser to
be coerced or influenced into deliberately damaging a nuclear power
plant, whether or not that person has safety-related duties. For
example, the person could lose their inhibitions while under the
influence or could be blackmailed into some act against the plant by
someone aware of that person's substance abuse.
Objective data establishes a relationship between substance abuse,
impairment, and inadvertent acts [NUREG/CR-5227, ``Fitness for Duty in
the Nuclear Power Industry: A Review of Technical Issues''], but the
staff's review of the relevant literature suggests that insufficient
scientific data exist to directly link substance abuse to the
performance of deliberate (or malicious) acts. However, it has been
clearly shown that, as human error rates increase, the risks to plant
safety will increase significantly. [See NUREG/CR-1879, ``Sensitivity
of Risk Parameters to Human Errors in Reactor Safety Studies for a
PWR.''] It has also been shown that substance abuse can sufficiently
impair a worker's motor skills and judgment that accidents attributable
to neglect and human error become significantly more probable. [See
NUREG/CR-5227 and Supplement 1 to NUREG/CR-5227.]
Information reported to the Commission indicates that arrests for
sale and distribution of illegal substances inside nuclear power plant
protected areas have decreased markedly since January 1990 when the FFD
Rule was implemented. Prior to the FFD Rule, a number of cases
involving the sale and distribution of illegal substances at nuclear
power plants were reported, as described in the staff's report cited
previously. The persons arrested for on-site sale and distribution of
drugs included both safety-related and non-safety-related workers. The
job categories included clerks, custodial workers, craftpersons, and
engineers. Since implementation of the FFD Rule, however, only one case
of this type has been reported to the Commission by a nuclear power
plant licensee. Two of the more significant deterrents added by the FFD
Rule were: (1) The requirement for random drug testing, and (2) the
five-year minimum revocation of unescorted access for persons
determined to have been involved in the sale, use, or possession of
illegal drugs within a protected area.
The threat of someone either inadvertently or deliberately damaging
or manipulating equipment that affects plant operations or could result
in radiological consequences arises from that person having access to
the equipment. Persons whose tasks involve design, operation, or
maintenance of that equipment represent a greater potential threat
because of their familiarity and more direct access to that equipment.
Safeguard measures that protect against someone from inside the
organization are intended to counter this threat by ensuring that
persons who have an opportunity to operate or manipulate any equipment
affecting plant functions are not impaired and are trustworthy and
reliable. To achieve these goals, the Commission believes that although
there are substantial unknowns currently associated with the true
detection and deterrence effectiveness of random testing, the use of
random drug testing provides an effective means for both detecting and
deterring the use of illegal drugs or abuse of alcohol.
The fundamental approaches for selecting those to be included in a
random testing program are to either test everyone (the ``universal''
approach) or to test only those in ``safety-sensitive'' positions.
Proponents of the universal approach contend that the safety-sensitive
approach tends to be discriminatory in that blue-collar workers are
tested but management is not. Proponents of the safety-sensitive
approach contend that random testing should be limited to only workers
in positions where a direct link to safety exists. The NRC's current
approach is a combination of these two fundamental approaches. The
NRC's approach tests everyone who has unescorted access to a protected
area and, therefore, tests everyone who has an opportunity to operate
or manipulate important systems and equipment that could challenge the
safe operation or emergency shutdown capability of a nuclear power
plant.
To satisfy the intended objective of random drug testing, one
approach would be to base the decision on who should be randomly tested
on a person's access to equipment that could, if manipulated, cause a
safety problem. This is a conservative approach and does not take into
account the abilities and skills of persons who may have access. For
someone who has access and whose tasks do not include safety-related
activities, the approach assumes they present some risk of either
inadvertently or deliberately causing safety problems.
Nuclear power plant security requirements provide distinct security
boundaries where personnel access is controlled. The nuclear power
plant protected area is one of these boundaries and is defined as an
area encompassed by physical barriers to which access is controlled (10
CFR 73.2). Protected areas contain components and systems that are
important to plant operations and whose failure could result in
challenges to more critical plant systems and components. The NRC
staff's evaluation study cites numerous cases where reactors have been
tripped and safety systems challenged as a result of accidents that
occurred in protected areas. Since 1987, there have been over two
thousand ``events'' that caused reactors to be scrammed.
Within protected areas are vital areas. Vital areas contain
equipment, systems, devices, or material, the failure, destruction, or
release of which could directly or indirectly endanger the public
health and safety by exposure to radiation. Unescorted access from
protected areas into vital areas is controlled and limited to persons
who require access to perform their duties.
An approach based on unescorted access to protected areas results
in a large variation among sites in the number of people subject to
random testing. Many power reactor sites have few administrative or
technical work stations inside their protected areas. At these sites,
most workers who have unescorted access also have job functions
directly related to plant operations and require access to one or more
vital areas. However, a number of power reactor sites have
administrative and technical support buildings located inside protected
areas. At these sites, many workers who have unescorted access only to
protected areas (and not to vital areas) do not have tasks directly
related to plant operations or maintenance.
Another approach to designating who would be subject to random
testing would be to base the decision on tasks the person performs.
This approach recognizes that people whose tasks directly involve plant
safety have the access, the opportunity, and the knowledge to cause a
safety problem. This approach addresses more directly the safety
problems that might be caused by a person who is impaired due to
substance abuse. Many positions and tasks are fairly well defined at
nuclear facilities. A core of individuals such as plant operators,
maintenance personnel, and quality control inspectors have tasks that
are clearly subject to NRC regulations and directly involve safety-
related activities. However, the relationship of some positions to
plant safety is more difficult to establish.
One ongoing NRC activity that could affect considerations for
changes in regulatory requirements for persons subject to random
testing is a study of security requirements associated with the insider
threat. There have been some indications that access control safeguards
could, in some circumstances, make it much harder for reactor operators
to maintain control of a plant. The NRC staff is considering whether
reductions are possible in the safeguards that control access into
vital areas from protected areas. Substantial reductions in the access
control safeguards for vital areas could alter the safety impact
assessments for optional approaches to random drug testing. These
safety assessments are based to some degree on the use of access
controls to segregate persons having access to vital areas from persons
whose access is limited to protected areas (i.e., persons who do not
have access to vital areas). Depending on how much importance is given
to concerns about deliberate acts based on influence from illegal drug
or alcohol abuse, future relaxation of the safeguards to control access
into vital areas from protected areas could significantly affect any
considerations for narrowing the scope of persons subject to random
testing.
To assist in the ongoing evaluation of the scope of random testing,
the Commission seeks comments on the proposed alternative approaches to
the scope of random testing and other related issues. Further
information on these alternative approaches is contained in the NRC
staff's report cited previously. This study addressed five options for
the scope of random testing. The first option is maintaining the
existing random drug testing scope, which is based on personnel access
to a particular location. Option 2, which would exclude certain groups
of workers from the random testing pool, and Option 3, which would
apply random testing to persons who have access only to vital areas,
represent relatively simple variations of the current program. Options
2 and 3 would narrow the pool of individuals subject to random testing.
Option 4 would base the scope of random testing on the tasks the person
performs. Option 5 would allow alternative testing (in lieu of
urinalysis) for workers in certain defined positions. For all five
options, it is assumed that the other elements of the FFD program (such
as suitable inquiries, preaccess testing, and for-cause testing) will
remain applicable to all workers who are given unescorted access to
protected areas. Specifically, comments are requested on the following:
1. Should the Commission retain the current scope of the random
drug testing requirements in 10 CFR part 26, which requires that all
persons granted unescorted access to protected areas at nuclear
power plants be subject to random drug testing? (Option 1)
2. Should the Commission revise the scope of the 10 CFR part 26
random drug testing requirements to adopt one or more of the
following approaches?
a. Exclude from random drug testing certain groups of workers
(e.g., clerical, administrative) who have unescorted access to
protected areas but not to vital areas. (Option 2)
b. Limit random drug testing to only those workers who have
unescorted access to vital areas of nuclear power plants. (Option 3)
c. Limit random drug testing to workers whose jobs involve
safety- or security-related functions regardless of whether these
workers have unescorted access to protected areas. (Option 4)
d. Allow use of alternative testing methods in lieu of
urinalysis for certain groups of workers who have unescorted access
to protected areas (but not to vital areas) only because their
normal workstations are within a protected area of the nuclear power
plant. These methods could include performance-based testing, even
though there are current technical limitations, primarily varying
degrees of detectability, reliability, sensitivity, and accuracy.
(See also question 7, below.) (Option 5)
3. For each of the four approaches above (2.a-2.d), what are the
potential effects on risk to public health and safety or on
vulnerability of nuclear power plants resulting from accidental acts
and deliberate acts such as sabotage or vandalism? Will
vulnerability or risk increase or decrease to any significant
degree, or will they remain unchanged?
4. What would be the expected effect on the need for random drug
testing under each of the four approaches above (2.a-2.d) if vital
area access controls are reduced ( e.g., allowing certain vital area
doors to normally be unlocked, but be capable of (i) being remotely
locked on demand in the event of a security contingency, and (ii)
generating an alarm if a vital area door is opened without an
authorized keycard )?
5. Does substance abuse increase the probability of a person
committing a deliberate act such as sabotage or vandalism? These
acts might be caused by indirect influences of drugs on a person's
attitude or susceptibility to being influenced by others. What data
exist to show a relationship between substance abuse and deliberate
acts? Is random drug testing an appropriate means to control the
risk of deliberate acts associated with substance abuse and, at the
same time, not encroach unreasonably into individual privacy
expectations?
6. Does the Commission's policy in 10 CFR part 26 deter the
introduction of illegal substances into protected areas of nuclear
power plants? If so, what aspect(s) of the FFD program creates this
deterrent effect? If not, should the Commission require licensees to
implement measures to cause this deterrent effect, and what type of
measures should be required? (Information describing the measures
and their effectiveness in sufficient detail to show the cause and
effect relationship between the deterrent measure and the resulting
reduction/elimination of illegal substances being brought into the
workplace would be useful.)
7. Should the Commission continue to investigate new testing
methods that could be used for all workers who have unescorted
access to protected areas? What are some methods that might be
acceptable and effective alternatives to the existing approach? For
proposed methods, please provide data that establishes accuracy
(i.e., test's error rate), specificity (i.e., degree to which the
test can measure what it's supposed to measure), reliability (i.e.,
the precision with which the test can be repeated and the
consistency of test results), and similar supporting parameters. The
Commission is specifically interested in data on the validity of
performance testing measures.
Dated at Rockville, Maryland, this 4th day of May 1994.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Assistant Secretary of the Commission.
[FR Doc. 94-11294 Filed 5-10-94; 8:45 am]
BILLING CODE 7590-01-P