Fitness for Duty Programs, 50442-50677 [05-15576]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Proposed Rules]
[Pages 50442-50677]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-15576]



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Part II





Nuclear Regulatory Commission





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10 CFR Part 26



Fitness for Duty Programs; Proposed Rule

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / 
Proposed Rules

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NUCLEAR REGULATORY COMMISSION

10 CFR Part 26

RIN 3150-AF12


Fitness for Duty Programs

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend 
its regulations for Fitness for Duty (FFD) programs to update the rule 
and enhance consistency with advances in other relevant Federal rules 
and guidelines, including the U.S. Department of Health and Human 
Services Mandatory Guidelines for Federal Workplace Drug Testing 
Programs (HHS Guidelines), and other Federal drug and alcohol testing 
programs that impose similar requirements on NRC licensees. The 
proposed amendments would require nuclear power plant licensees to 
strengthen the effectiveness of their FFD programs in ensuring against 
worker fatigue adversely affecting public health and safety and the 
common defense and security by establishing clear and enforceable 
requirements for the management of worker fatigue; and ensure 
consistency with the NRC's access authorization requirements for 
nuclear power plants. The proposed rule would ensure that individuals 
who are subject to these regulations are trustworthy and reliable, as 
demonstrated by avoiding substance abuse; are not under the influence 
of drugs or alcohol while performing their duties; and are not mentally 
or physically impaired from any other cause, that would in any way 
adversely affect their ability to perform their duties safely and 
competently.
    This proposed rule would also grant, in part, a petition for 
rulemaking (PRM-26-1) submitted by Virginia Electric and Power Company 
(now Dominion Virginia Power) on December 30, 1993, by relaxing several 
required FFD program audit frequencies, and would partially grant a 
petition for rulemaking (PRM-26-2) submitted by Barry Quigley on 
December 28, 1999.

DATES: Submit comments on the rule by December 27, 2005. Submit 
comments specific to the information collections aspects of this rule 
by September 26, 2005. Comments received after the above dates will be 
considered if it is practical to do so, but assurance of consideration 
cannot be given to comments received after these dates.

ADDRESSES: You may submit comments on the rule by any one of the 
following methods. Please include the following number (RIN 3150-AF12) 
in the subject line of your comments. Comments on rulemakings submitted 
in writing or in electronic form will be made available to the public 
in their entirety on the NRC rulemaking Web site. Personal information 
will not be removed from your comments.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, Attention: Rulemakings and Adjudications 
Staff.
    E-mail comments to: SECY@nrc.gov. If you do not receive a reply e-
mail confirming that we have received your comments, contact us 
directly at (301) 415-1966. You may also submit comments via the NRC's 
rulemaking Web site at https://ruleforum.llnl.gov. Address questions 
about our rulemaking Web site to Carol Gallagher (301) 415-5905; e-mail 
cag@nrc.gov.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland, between 7:30 A.M. and 4:15 P.M. on Federal workdays.
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
(301) 415-1101.
    You may submit comments on the information collections by the 
methods indicated in the Paperwork Reduction Act Statement.
    Publicly available documents related to this rulemaking may be 
examined and copied for a fee at the NRC's Public Document Room (PDR), 
Public File Area O1-F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland. Copyrighted documents may be viewed at the NRC's 
PDR, but may not be copied. The draft Regulatory Analysis and other 
documents related to this rulemaking, including comments can be viewed 
and downloaded electronically via the NRC rulemaking Web site at http:/
/ruleforum.llnl.gov.
    Publicly available documents created or received at the NRC after 
November 1, 1999, are available electronically at the NRC's Electronic 
Reading Room at https://www.nrc.gov/NRC/ADAMS/. From this 
site, the public can gain entry into the NRC's Agencywide Document 
Access and Management System (ADAMS), which provides text and image 
files of NRC's public documents. If you do not have access to ADAMS or 
if there are problems in accessing the documents located in ADAMS, 
contact the NRC Public Document Room (PDR) Reference staff at 1-800-
397-4209, 301-415-4737 or by e-mail to pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Rebecca L. Karas, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone (301) 415-3711, Timothy S. McCune, Office of 
Nuclear Security and Incident Response, telephone (301) 415-6474, or 
Dr. David R. Desaulniers, Office of Nuclear Reactor Regulation, 
telephone (301) 415-1043. All of the above contacts may also be reached 
by e-mail to FITNESSFORDUTY@NRC.GOV.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Drug and Alcohol Testing Provisions, and General Fitness-for-
Duty Program Provisions
    B. Work Fatigue Provisions
    C. Combined Part 26 Rulemaking
II. Petitions and Request for Exemption
    A. Petition for Rulemaking PRM-26-1
    B. Petition for Rulemaking PRM-26-2
    C. Request for Exemption under 10 CFR 26.6
III. Abbreviations
IV. Discussion of Proposed Action
    A. Overview
    B. Goals of the Rulemaking Activity
    C. Overview of Proposed Rule
    D. Inclusion of Worker Fatigue Provisions in 10 CFR Part 26
V. Summary of Public Interactions and Comments
    A. Public Comments Submitted to OMB on 2000 Final Rule and 
Responses
    B. Key Stakeholder Comments not Incorporated into Proposed Rule 
and Responses
VI. Section-by-Section Analysis of Substantive Changes
VII. Issues for Public Comment
VIII. Criminal Penalties
IX. Agreement State Compatibility
X. Plain Language
XI. Voluntary Consensus Standards
XII. Finding of No Significant Environmental Impact: Environmental 
Assessment
XIII. Paperwork Reduction Act Statement
XIV. Regulatory Analysis
    A. Aggregate Analysis
    B. Screening Review for Disaggregation
    C. Disaggregation of Worker Fatigue Provisions
XV. Regulatory Flexibility Act Certification
XVI. Backfit Analysis
    A. Consideration of Fuel Fabrication Facilities and Gaseous 
Diffusion Plants
    B. Aggregate Backfit Analysis
    C. Screening Review for Disaggregation
XVII. References

I. Background

A. Drug and Alcohol Testing Provisions, and General Fitness-for-Duty 
Program Provisions

    On June 7, 1989, the Commission announced the adoption of a new 
rule, 10 CFR Part 26, Fitness for Duty Programs (54 FR 24468), that 
required each licensee authorized to operate or construct a nuclear 
power reactor to implement a FFD program for all

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personnel having unescorted access to the protected area of its plant. 
A subsequent final rule published in the Federal Register on June 3, 
1993, (58 FR 31467) expanded the scope of Part 26 to include licensees 
authorized to possess, use, or transport formula quantities of 
Strategic Special Nuclear Materials (SSNM).
    At the time the FFD rule was published in 1989, the Commission 
directed the NRC staff to continue to analyze licensee programs, assess 
the effectiveness of the rule, and recommend appropriate improvements 
or changes. The NRC staff reviewed information from several sources 
including inspections, periodic reports by licensees on FFD program 
performance, reports of significant FFD events, industry sponsored 
meetings and current literature, as well as initiatives by industry, 
the Substance Abuse and Mental Health Services Administration (SAMHSA, 
formerly the National Institute on Drug Abuse [NIDA]) and SAMHSA's Drug 
Testing Advisory Board, and recommended improvements and changes.
    As a result, the NRC published proposed amendments to the FFD rule 
in the Federal Register on May 9, 1996 (61 FR 21105). The 90-day public 
comment period for the proposed rulemaking closed on August 7, 1996. 
The NRC staff reviewed and considered public comments on the proposed 
rule, and submitted a final rule to the Commission in a Commission 
paper (SECY-00-0159), dated July 26, 2000. The Commission affirmed the 
rule in a Staff Requirements Memorandum (SRM-M001204A) dated December 
4, 2000. The affirmed rule was sent to the Office of Management and 
Budget (OMB) to obtain a clearance under the Paperwork Reduction Act. 
The request for comments on the clearance was published in the Federal 
Register on February 2, 2001 (66 FR 8812). OMB and NRC received public 
comments that objected to some aspects of the rule (responses to those 
comments are included in Section V of this document). In SECY-01-0134, 
dated July 23, 2001, the NRC staff recommended withdrawing the request 
for clearance and preparing a new proposed rule. In a Staff 
Requirements Memorandum (SRM-SECY-01-0134) dated October 3, 2001, the 
Commission approved the staff's recommendation to withdraw the request 
for clearance and prepare a new proposed rule.

B. Worker Fatigue Provisions

    The NRC's ``Policy on Factors Causing Fatigue of Operating 
Personnel at Nuclear Reactors'' (referred to in this document as NRC's 
Policy on Worker Fatigue) was first published in the Federal Register 
on February 18, 1982, (47 FR 7352), and later issued through Generic 
Letter (GL) 82-12, ``Nuclear Power Plant Staff Working Hours,'' on June 
15, 1982 (referred to in this document as GL 82-12). In GL 82-12, the 
NRC requested licensees to revise the administrative section of their 
technical specifications to ensure that plant administrative procedures 
were consistent with the revised work-hour guidelines. Those guidelines 
were:
    (1) An individual should not be permitted to work more than 16 
hours straight (excluding shift turnover time);
    (2) An individual should not be permitted to work more than 16 
hours in any 24-hour period, nor more than 24 hours in any 48-hour 
period, nor more than 72 hours in any seven day period (all excluding 
shift turnover time);
    (3) A break of at least 8 hours should be allowed between work 
periods (including shift turnover time); and
    (4) Except during extended shutdown periods, the use of overtime 
should be considered on an individual basis and not for the entire 
staff on a shift.
    Further, the guidelines permitted deviations from these limits in 
very unusual circumstances if authorized by the plant manager, his 
deputy, or higher levels of management. The NRC's Policy on Worker 
Fatigue was incorporated, directly or by reference, and with variations 
in wording and detail, into the technical specifications of all but 
three nuclear power plant sites, who implemented the concept using 
other administrative controls.
    When 10 CFR part 26 was issued on June 7, 1989 (54 FR 24468), it 
focused on establishing requirements for preventing and detecting 
personnel impairment from drugs and alcohol. However, consistent with 
SRM-SECY-88-129, dated July 18, 1988, several requirements addressed 
other causes of impairment, including fatigue. Those requirements 
included general performance objectives [Sec.  26.10(a) and (b)] that 
provided for ``* * * reasonable assurance that nuclear power plant 
personnel * * * are not under the influence of any substance, legal or 
illegal, or mentally or physically impaired from any cause * * *'' and 
``* * * early detection of persons who are not fit to perform 
activities within the scope of this part * * * '' A requirement was 
also included in Sec.  26.20(a) for licensee policies to ``* * * 
address other factors that could affect fitness for duty such as mental 
stress, fatigue and illness.''
    In a letter dated February 25, 1999, Congressmen Dingell, Klink, 
and Markey expressed concerns to former NRC Chairman Shirley Ann 
Jackson that low staffing levels and excessive overtime may present a 
serious safety hazard at some commercial nuclear power plants. The 
Union of Concerned Scientists (UCS) expressed similar concerns on March 
18, 1999, in a letter from David Lochbaum to Chairman Jackson, and in 
the UCS report ``Overtime and Staffing Problems in the Commercial 
Nuclear Power Industry,'' dated March 1999. In a letter dated May 18, 
1999, to the Congressmen, the Chairman stated that the NRC staff would 
assess the need to revise the policy.
    Soon thereafter, the Commission received a petition for rulemaking 
(PRM-26-2), dated September 28, 1999, from Barry Quigley. (The petition 
is discussed in greater detail in Section II. B.) The petition 
requested that the NRC amend 10 CFR Parts 26 and 55 to establish clear 
and enforceable work hour limits to mitigate the effects of fatigue for 
nuclear power plant personnel performing safety-related work.
    The UCS petitioned the NRC on April 24, 2001, pursuant to 10 CFR 
2.206, to issue a Demand for Information (DFI) to specified licensees. 
The petition asserted that Wackenhut Corporation has the contractual 
right to fire security guards who refuse to report for mandatory 
overtime, and that this contractual right conflicts with 10 CFR Part 
26. The NRC denied the DFI (ADAMS Accession No. ML013230169), but 
addressed the concerns of the petition through the NRC's generic 
communication process. On May 10, 2002, the NRC issued NRC Regulatory 
Issue Summary (RIS) 2002-07: ``Clarification of NRC Requirements 
Applicable to Worker Fatigue and Self-Declarations of Fitness-for-
Duty.'' The RIS addressed the applicability of 10 CFR Part 26 to worker 
fatigue, the potential for sanctions related to worker FFD concerns to 
have adverse implications for maintaining a work environment conducive 
to reporting FFD concerns, and the protections afforded workers by 10 
CFR 50.7, ``Employee Protection.''
    On January 10, 2002, in SRM-SECY-01-0113, the Commission approved a 
rulemaking plan, Fatigue of Workers at Nuclear Power Plants, dated June 
22, 2001 (referred to in this document as SECY-01-0113). In accordance 
with the approved plan, the NRC initiated a rulemaking to incorporate 
fatigue management into 10 CFR Part 26 in order to strengthen the 
effectiveness of FFD programs at nuclear power plants in ensuring 
against worker fatigue

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adversely affecting public health and safety and the common defense and 
security by establishing clear and enforceable requirements for the 
management worker fatigue.
    During the development of proposed fatigue management requirements, 
the NRC observed an increase in concerns (e.g, allegations, media and 
public stakeholder reports) related to the workload and fatigue of 
security personnel following the terrorist attacks of September 11, 
2001. Following an NRC review of the control of work hours for security 
force personnel, and public interactions with stakeholders, the 
Commission issued Order EA-03-038 on April 29, 2003, requiring 
compensatory measures related to fitness-for-duty enhancements for 
security personnel at nuclear power plants, including work hour limits.
    The compensatory measures imposed by Order EA-03-038 were similar 
to the guidelines of the NRC's Policy on Worker Fatigue. The 
compensatory measures differed from the Policy guidelines in a few 
areas in which the NRC believed it was necessary to address previously 
identified deficiencies in the guidelines, including the need to 
address cumulative fatigue from prolonged use of extended work hours, 
matters unique to security personnel, and stakeholder input obtained 
through public meetings concerning the proposed worker fatigue 
rulemaking and the Order. The requirements in the Order were imposed to 
provide the Commission with reasonable assurance that the public health 
and safety and common defense and security continue to be adequately 
protected. The provisions specified in proposed 10 CFR Part 26, Subpart 
I, Managing Fatigue, for security force personnel would replace the 
requirements imposed by Order. Differences between the proposed 
requirements in Subpart I and the requirements imposed by Order, and 
the rationale for those differences, are discussed in Section IV. D.

C. Combined Part 26 Rulemaking

    On March 29, 2004, in COMSECY-04-0014, the NRC staff informed the 
Commission of the status of both rulemaking activities. The NRC staff 
also noted that because both rulemaking activities were being completed 
in parallel, the draft proposed fatigue rule language was based on the 
draft language in the proposed overall revision to Part 26, rather than 
on the current language in Part 26. Therefore, meaningful public 
comment could be confounded by the simultaneous promulgation of two 
draft rules which are somewhat interdependent, and staff action to 
address a comment on one proposed rule could easily impact the other 
proposed rule, creating a high potential for the need to repropose one 
or both rules. In SRM-COMSECY-04-0014, dated May 25, 2004, the 
Commission directed the staff to combine the rulemaking related to 
nuclear power plant worker fatigue with the ongoing Part 26 rulemaking 
activity. This combined proposed rule withdraws the proposed rule 
published on May 9, 1996.

II. Petitions and Request for Exemption

A. Petition for Rulemaking PRM-26-1

    On December 30, 1993, Virginia Electric and Power Company (now 
Dominion Virginia Power) submitted a Petition for Rulemaking (PRM-26-1) 
requesting relaxation of the required 1-year audit frequency of the FFD 
program and of licensee FFD programs and the program elements of 
contractors and vendors (C/Vs) that are relied upon by licensees. The 
petition requested that the first sentence of 10 CFR 26.80(a) be 
amended to read:
    ``Each licensee subject to this Part shall audit the fitness-for-
duty program nominally every 24 months * * * In addition, audits must 
be conducted, nominally every 24 months, of those portions of fitness-
for-duty programs implemented by contractors and vendors * * *''
    In a letter dated March 14, 1994, the NRC informed the petitioner 
that the petition would be addressed in a proposed rulemaking that was 
under development. The NRC has periodically communicated with the 
petitioner regarding the status of this rulemaking since that time.
    Proposed Sec.  26.41(b) would partially grant two aspects of the 
petition. That is, the required audit frequency for licensees and other 
entities who are subject to 10 CFR Part 26 would be reduced from the 
nominal 1-year frequency in the current rule to a nominal 2-year 
frequency. Further, audits of C/V services that are performed on site 
and under the direct daily supervision or observation of licensee 
personnel would be conducted as part of the 2-year audits of the 
licensee or other entity's FFD program, under proposed Sec.  26.41(b).
    Proposed Sec.  26.41(c)(1) would partially deny two aspects of the 
petition. That is, the nominal annual audit requirement for HHS-
certified laboratories would be retained. In addition, the annual audit 
requirement would be retained for FFD program elements provided by C/Vs 
whose personnel ``* * * are off site or are not under the direct daily 
supervision or observation of licensee personnel * * *''
    The bases for these changes to audit requirements in the proposed 
rule are addressed in the subsequent sections of this supplementary 
information.

B. Petition for Rulemaking PRM-26-2

    On September 28, 1999, Barry Quigley submitted a Petition for 
Rulemaking (PRM-26-2) requesting that the NRC amend 10 CFR Parts 26 and 
55 to establish clear and enforceable work hour limits to mitigate the 
effects of fatigue for nuclear power plant personnel performing safety-
related work. The PRM was published for public comment on December 1, 
1999, (64 FR 67202). As described in Attachment 3 to SECY-01-0113, the 
petition requested the NRC to:
    (1) Add enforceable working hour limits to 10 CFR Part 26;
    (2) Add a criterion to 10 CFR 55.33(a)(1) to require evaluation of 
known sleeping disorders;
    (3) Revise the NRC Enforcement Policy to include examples of 
working hour violations that warrant various NRC sanctions; and
    (4) Revise NRC Form 396 to include self-disclosure of sleeping 
disorders by licensed operators.
    The NRC received 176 comment letters in response to the petition. 
The majority of the comments (157) were in favor of a rule. These 
comments were principally from individuals and public interest groups. 
Comments received from licensees, the Nuclear Energy Institute (NEI) 
and Winston and Strawn, a law firm representing several utilities, were 
opposed to PRM-26-2. A summary of the comments and responses is 
available in SECY-01-0113 as Attachment 2. This document may be 
obtained from the NRC's Web site, https://www.nrc.gov, by selecting the 
electronic reading room and then collections of documents by type. It 
is also available in the NRC's Agencywide Documentation and Management 
System (ADAMS) under Package Accession Number ML010180224.
    Although the NRC received many comments concerning the specific 
requirements proposed in PRM-26-2, in general, letters in support of 
the rulemaking--
    (1) Cited the importance of ensuring that personnel who perform 
safety-related functions are not impaired by fatigue;
    (2) Expressed concern that the NRC does not have a regulation 
limiting working hours and the perception that the NRC lacks the 
authority to enforce

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the guidelines in the NRC's Policy on Worker Fatigue;
    (3) Asserted that the guidelines are ambiguous and that licensees 
interpret the guidelines as not applicable when the plant is in an 
outage;
    (4) Asserted that ``the NRC appears to look the other way'' when 
licensee work scheduling practices appear inconsistent with the 
guidelines; and
    (5) Expressed the concern that utility restructuring and cost 
competition will cause reductions in staffing levels and increased 
working hours and fatigue.
    Further, several commenters noted that the Federal Government has 
established work hour limits for personnel in other industries and 
suggested that similar limits should apply to nuclear power plant 
workers.
    In general, comments that opposed the petition expressed the 
opinion that existing regulatory requirements (i.e., technical 
specifications and 10 CFR Part 26) are adequate to ensure that 
personnel are not impaired by fatigue, that the proposed requirements 
would impose an unnecessary and excessive burden that could not be 
justified through a backfit analysis, and that industry performance 
data refute the petitioner's argument that a rule is necessary to 
prevent fatigued personnel from performing safety-related work.
    The NRC has evaluated the merits of PRM-26-2, the comments received 
in response to the PRM, and assessed the Policy on Worker Fatigue. The 
NRC has concluded that the petitioner proposed a comprehensive set of 
requirements that could reasonably be expected to effectively address 
fatigue from individual and programmatic causes. However, the NRC 
believes that it is possible to achieve these objectives through 
alternative requirements that are more flexible, more directly focused 
on risk, and more aligned and integrated with current regulatory 
requirements. The proposed rule would therefore grant, in part, PRM-26-
2. A detailed discussion of the principal findings that led to the 
decision to grant, in part, PRM-26-2 through rulemaking are included in 
Section IV. D. of this document. In addition, for item 3 of PRM-26-2, 
the NRC revised Inspection Procedure (IP) 71130.08, ``Fitness For Duty 
Programs'' on February 19, 2004, to reflect the requirements of Order 
EA-03-038, dated April 29, 2003, which required compensatory measures 
related to fitness-for-duty enhancements for security personnel at 
nuclear power plants, including work hour limits. The NRC plans to 
similarly revise the same documents during preparation of the final 
Part 26 rule. The self-disclosure of sleeping disorders by licensed 
operators (item 4) is being addressed by the NRC as a separate effort 
from this proposed rule through changes to Regulatory Guide 1.134, 
``Medical Evaluation of Licensed Personnel at Nuclear Power Plants.''

C. Request for Exemption under 10 CFR 26.6

    The current rule requires random drug and alcohol testing for 
personnel with unescorted access to the protected area of a nuclear 
power plant. By letter dated March 13, 1990, the International 
Brotherhood of Electrical Workers (IBEW) Local 1245 requested an 
exemption from random testing for clerical, warehouse, and maintenance 
workers at the Diablo Canyon Nuclear Power Plant (Diablo Canyon) under 
the provisions of 10 CFR 26.6. The NRC denied the request and IBEW 
Local 1245 sought judicial review. In 1992, the Ninth Circuit Court of 
Appeals affirmed the NRC's denial of the request (IBEW, Local 1245 v. 
NRC, No. 90-70647, 9th Cir., June 11, 1992). In its opinion, the court 
said that random testing may well be impermissible for clerical workers 
at Diablo Canyon who perform no safety-sensitive work and have no 
access to vital areas. However, in the record before the court at that 
time, IBEW Local 1245 had not established that such a group existed. On 
January 26 and December 6, 1993, IBEW Local 1245 renewed its request 
for exemption, specifically asking that the NRC exempt from 10 CFR Part 
26 requirements for random drug testing, clerical employees at Diablo 
Canyon who are members of Local 1245 of the IBEW and who have 
unescorted access to the protected area (PA) only, but not to the 
radiologically controlled areas (RCAs) or vital areas (VAs) and who are 
not required to staff the plant's emergency response center (ERC). The 
PA is the area inside the security fence of a nuclear power plant, 
which surrounds the entire plant, and the immediately surrounding area, 
whereas the VAs enclose key safety systems and are located within the 
PA. The RCAs contain elevated levels of radiation or contamination and 
are generally located within the PA. The ERC is located offsite and is 
where the licensee evaluates and coordinates licensee activities 
related to an emergency, and communicates to Federal, State and local 
authorities responding to radiological emergencies. The NRC requested 
public comment on the issue in the Federal Register of May 11, 1994 (59 
FR 24373). Comments were received from the nuclear industry, which 
largely opposed a reduction in the scope of random testing, and from 
elements of the IBEW, including Local 1245, which favored it. In SRM-
SECY-04-0229, dated January 10, 2005 (available on the NRC Web site at 
https://www.nrc.gov/reading-rm/doc-collections/commission/srm/), the 
Commission denied the IBEW exemption request because it--
    (1) Would endanger the common defense and security (as a result of 
increasing the likelihood of an insider threat); and
    (2) Was not in the public interest (because reducing the scope of 
random drug testing could increase the risk to public health and safety 
due to a greater risk of both sabotage (insider threat due to 
vulnerability to coercion) and of an accident (impaired worker)).
    Consequently, this proposed rule would maintain the current 
requirement for random drug and alcohol testing for personnel with 
unescorted access to the PA at a nuclear power plant.

III. Abbreviations

    The following abbreviations and acronyms are used in this Statement 
of Considerations.

AEA Atomic Energy Act
ASDs Alcohol screening devices
BAC Blood alcohol concentration
CPL Conforming products list
C/V Contractor/vendor
DOT Department of Transportation
EAP Employee assistance program
EBT Evidential breath testing device
EPRI Electric Power Research Institute
FFD Fitness for duty
GC/MS Gas chromatography/mass spectrometry
HHS Department of Health and Human Services
IBEW International Brotherhood of Electrical Workers
KAs Knowledge and abilities
LOD Limit of detection
LOQ Limit of quantitation
mg/dL Milligrams per deciliter
MRO Medical Review Officer
NEI Nuclear Energy Institute
ng/dL Nanograms per deciliter
NHTSA National Highway Transportation Safety Administration
NRC Nuclear Regulatory Commission
NSF National Sleep Foundation
OMB Office of Management and Budget
PDFFDI Potentially disqualifying fitness-for-duty information
pH potential of hydrogen
POGO Project on Government Oversight
PROS Professional Reactor Operator Society
QA/QC Quality assurance/quality control
SAE Substance Abuse Expert
SAMHSA Substance Abuse and Mental Health Services Administration

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SSNM Strategic special nuclear material
THC Tetrahydrocannabinol, delta-9-tetrahydrocannabinol-9-carboxylic 
acid
UCS Union of Concerned Scientists
6-AM 6-acetylmorphine

IV. Discussion of Proposed Action

A. Overview

    A review of FFD program experience confirms that the regulatory 
approach of 10 CFR Part 26 is fundamentally sound and continues to 
provide a means of deterrence and detection of substance abuse at 
licensee facilities. NRC Information Notice 2003-04, ``Summary of 
Fitness-for-Duty Program Performance Reports,'' dated February 6, 2003, 
provides the latest published summary of program performance. This 
document may be obtained from the NRC's Web site, https://www.nrc.gov, 
by selecting the electronic reading room and then collections of 
documents by type. It is also available in ADAMS under Accession No. 
ML030350473.
    Nonetheless, the NRC believes that revisions are needed to improve 
the effectiveness and efficiency of FFD programs; enhance consistency 
with advances in similar rules and guidelines, including the HHS 
Guidelines and other Federal drug and alcohol testing programs that 
place similar requirements on the private sector; strengthen the 
effectiveness of FFD programs at nuclear power plants in ensuring 
against worker fatigue adversely affecting public health and safety and 
the common defense and security by establishing clear and enforceable 
requirements for the management of worker fatigue; enhance consistency 
with the NRC's access authorization requirements; improve clarity in 
the organization and language of the rule; and improve Part 26 by 
eliminating or modifying unnecessary requirements.

B. Goals of the Rulemaking Activity

    The Nuclear Regulatory Commission (NRC) proposes to amend 10 CFR 
Part 26, Fitness for Duty Programs. The proposed goals are to:
    (1) Update and enhance the consistency of 10 CFR Part 26 with 
advances in other relevant Federal rules and guidelines, including the 
U.S. Department of Health and Human Services Mandatory Guidelines for 
Federal Workplace Drug Testing Programs and other Federal drug and 
alcohol testing programs (e.g., those required by the U.S. Department 
of Transportation [DOT]) that impose similar requirements on the 
private sector.
    (2) Strengthen the effectiveness of FFD programs at nuclear power 
plants in ensuring against worker fatigue adversely affecting public 
health and safety and the common defense and security by establishing 
clear and enforceable requirements for the management of worker 
fatigue;
    (3) Improve the effectiveness and efficiency of FFD programs.
    (4) Improve consistency between FFD requirements and access 
authorization requirements established in 10 CFR 73.56, as supplemented 
by orders to nuclear power plant licensees dated January 7, 2003.
    (5) Improve Part 26 by eliminating or modifying unnecessary 
requirements.
    (6) Improve clarity in the organization and language of the rule.
    (7) Protect the privacy and due process rights of individuals who 
are subject to Part 26.
    Each of these goals is expected to result in substantial 
improvements in FFD programs. Many changes in the proposed rule relate 
to each goal. The major changes for each subpart, and the reasons for 
those changes, are described in Section IV. C and D of this document. 
For each of the many specific changes that are being proposed, detailed 
discussions are included in Section VI. However, the following 
discussion provides a description of each goal, a basis for the need to 
accomplish that goal, and several examples of proposed changes to the 
rule that would contribute to meeting the goal.
    Goal 1--Update and enhance the consistency of 10 CFR Part 26 with 
advances in other relevant Federal rules and guidelines, including the 
U.S. Department of Health and Human Services Mandatory Guidelines for 
Federal Workplace Drug Testing Programs (referred to in this document 
as the HHS Guidelines) and other Federal drug and alcohol testing 
programs (e.g., those required by the U.S. Department of Transportation 
[DOT]) that impose similar requirements on the private sector. Goal 1 
is central to this rulemaking activity. Many changes are included in 
the proposed rule to maintain consistency with advances in the conduct 
of FFD programs, including changes in the HHS Guidelines. The 1994, 
1998, and 2004 revisions to the HHS Guidelines differ substantially 
from the 1988 version of the Guidelines, upon which the current rule is 
based.
    The President of the United States designated HHS as the agency 
responsible for the Federal workplace drug testing program, and HHS' 
Substance Abuse and Mental Health Services Administration (SAMHSA) is 
responsible for maintaining the HHS drug testing guidelines based on 
the most recent research and the accumulation of lessons learned from 
the Federal drug testing program, as well as others who are regulated. 
The NRC has historically relied on HHS to establish the technical 
requirements for urine specimen collection, testing and evaluation, and 
has only deviated from HHS' guidelines for considerations that are 
specific to the nuclear industry. Updating Part 26 to be consistent 
with HHS' most recent Guidelines ensures that NRC regulations continue 
to be scientifically and technically sound.
    Further, the HHS-certified laboratories that Part 26 requires 
licensees to use for drug testing are required by HHS to follow the HHS 
Guidelines in order to retain their certification. Basing Part 26 on 
older versions of the HHS Guidelines, or deviating from those 
Guidelines, increases the cost of drug testing for the nuclear 
industry. Therefore, updating Part 26 to increase consistency with the 
HHS Guidelines not only ensures that Part 26 is based on the best 
scientific and technical information available, but also avoids 
imposing an unnecessary and costly regulatory burden on the nuclear 
industry.
    One example of an improvement from enhancing consistency with the 
HHS Guidelines is that several cutoff levels for detection of various 
drugs would be updated, including a revised lower cutoff level for the 
marijuana metabolite, THC. The lower cutoff level will provide greater 
assurance that individuals who use marijuana are identified.
    Additionally, a revision to the HHS Guidelines, published in the 
Federal Register on April 13, 2004 (69 FR 19643) as a final rule, 
includes requirements for instrumented specimen validity tests to 
determine whether a urine specimen has been adulterated, diluted, or 
substituted. This proposed rule would adopt significant portions of the 
final HHS specimen validity testing provisions. The new validity 
testing requirements will substantially improve the effectiveness of 
the measures to guard against subversion of the testing process that 
are contained in current Part 26.
    Several other provisions for drug testing are under consideration 
by HHS and were published as a proposed rule for public comment in the 
Federal Register on April 13, 2004 (69 FR 19672). One proposed change 
to 10 CFR Part 26 that was included from the proposed HHS Guidelines is 
permission for licensees to use non-instrumented validity testing 
devices to determine

[[Page 50447]]

whether a urine specimen must be subject to further testing at an HHS-
certified laboratory because it may have been adulterated, diluted, or 
substituted, in lieu of the instrumented validity testing required in 
the April 13, 2004, final version of the HHS Guidelines. Although the 
HHS Guidelines that would permit Federal drug testing programs to use 
non-instrumented validity testing devices for initial testing of urine 
specimens are not yet final, some NRC licensees desired the flexibility 
to use these testing methods. A technical basis for use of those 
methods is included in Section VI. However, the NRC is not proposing to 
include other provisions in the proposed HHS Guidelines at this time. 
Those provisions include permitting the drug testing of specimens other 
than urine (e.g., hair, saliva, sweat), requirements for split specimen 
procedures for all specimens, and HHS certification of instrumented 
initial test facilities, which would be analogous to licensee testing 
facilities. Should such provisions be included in final HHS Guidelines 
in the future, the NRC will consider incorporating them into 10 CFR 
Part 26 at that time.
    In addition to the proposed changes to 10 CFR Part 26 that 
incorporate the recent revisions to the HHS Guidelines, the Department 
of Transportation (DOT) revised its Procedures for Transportation 
Workplace Drug and Alcohol Testing Programs [49 CFR 40, 65 FR 41944; 
August 9, 2001] to include the use of oral fluids (i.e., saliva) as 
acceptable specimens for initial alcohol screening tests. The proposed 
rule would also reflect the new oral fluids testing technology to 
provide FFD programs with increased flexibility in administering 
initial alcohol tests.
    Because the HHS Guidelines do not establish requirements for 
alcohol testing, NRC relies on the DOT regulations, in part, to ensure 
that the alcohol testing provisions of Part 26 remain scientifically 
sound and legally defensible. Because the DOT programs test a much 
larger number of individuals, in comparison to the number of alcohol 
tests that are conducted under Part 26, basing the NRC's alcohol 
testing regulations on portions of the DOT regulations reflects the 
lessons learned from that larger population.
    Goal 2--Strengthen the effectiveness of FFD programs at nuclear 
power plants in ensuring against worker fatigue adversely affecting 
public health and safety and the common defense and security by 
establishing clear and enforceable requirements for the management of 
worker fatigue. This goal is central to this rulemaking activity. 
Proposed Subpart I, Managing Fatigue, would add clear and enforceable 
requirements for licensee management of worker fatigue to 10 CFR Part 
26. The proposed requirements would reduce the potential for worker 
fatigue, and therefore strengthen the effectiveness of FFD programs at 
nuclear power plants and substantially increase the protection of 
public health and safety and the common defense and security. Section 
VI discusses the specific reasons for each proposed worker fatigue 
provision. Section IV. D provides a detailed discussion of the overall 
basis for establishing fatigue management requirements for FFD 
programs, and the benefits expected to result.
    Goal 3--Improve the effectiveness and efficiency of FFD programs. 
The NRC has gained experience in the actual implementation of FFD 
programs since Part 26 was originally promulgated. The NRC is proposing 
many changes throughout Part 26 based on that experience in order to 
improve the industry's programs specifically to increase both the 
effectiveness of the programs in achieving the goals of Part 26, and 
the efficiency of program operations. Increasing the effectiveness and 
efficiency of FFD programs will enhance the protection of public health 
and safety and the common defense and security.
    One example of a change related to Goal 3 is the proposed reduction 
in the period within which pre-access testing must be performed from 60 
days, in current Sec.  26.24(a)(1), to 30 days or less, in proposed 
Subpart C [Granting and Maintaining Authorization]. This proposed 
change would improve the effectiveness of the pre-access test in 
detecting drug and alcohol use by individuals who are applying for 
authorization to perform the types of job duties that require them to 
be subject to Part 26 (see proposed Sec.  26.25 [Individuals subject to 
the fitness-for-duty program]). Reducing the number of breath specimens 
required for alcohol testing from two each for initial and confirmatory 
testing, in current Section 2.4(g)(18) in Appendix A to Part 26, to one 
specimen for the initial test and one for the confirmatory test, if 
required, in proposed Sec.  26.91(d), would increase the efficiency of 
FFD programs without compromising the accuracy and validity of alcohol 
test results.
    Another example would be establishing a regulatory framework for 
the management of worker fatigue that appropriately balances the need 
for flexibility to manage plant exigencies and worker individual 
differences relative to fatigue with the need for more readily 
enforceable requirements and efficient NRC oversight of licensee 
compliance with the requirements and performance objectives of the 
rule.
    Goal 4--Improve consistency between FFD requirements and access 
authorization requirements established in 10 CFR 73.56, as supplemented 
by orders to nuclear power plant licensees dated January 7, 2003. 
Current FFD and access authorization requirements each contain 
provisions that relate to establishing the trustworthiness and 
reliability of personnel prior to granting unescorted access to the 
protected areas of nuclear power plants. The NRC has determined that, 
because both sets of requirements share this same goal, revising Part 
26 would clarify the relationship between these requirements, 
particularly for licensee access authorization decisions regarding 
personnel who move between sites with some interruption in their status 
of having unescorted access to a nuclear power plant. In addition, some 
requirements in Part 26 address the granting of temporary unescorted 
access. In response to the terrorist attacks of September 11, 2001, on 
the World Trade Center and the Pentagon, and the current threat 
environment, the Commission took action to curtail the use of temporary 
unescorted access at commercial nuclear power plants. Temporary 
unescorted access was eliminated by orders issued January 7, 2003, 
which imposed compensatory measures on existing access authorization 
programs. Therefore, it is necessary to revise the related provisions 
in Part 26.
    Goal 5--Improve 10 CFR Part 26 by eliminating or modifying 
unnecessary requirements. The proposed rule would incorporate a number 
of changes to eliminate or modify unnecessary requirements. The 
experience NRC has gained over the years since Part 26 was promulgated 
have enhanced the agency's understanding of implementation by the 
industry, and the NRC now proposes to eliminate or modify some 
provisions, while at the same time maintaining the protection of public 
health and safety and the common defense and security.
    For example, because of inconsistencies in FFD and access 
authorization requirements for conducting employment inquiries, many 
licensees contacted an individual's previous employers twice--once to 
obtain the information required under Part 26 and once to obtain the 
information required for access authorization. Proposed revisions to 
Part 26 would clarify that licensees may obtain information to satisfy 
FFD

[[Page 50448]]

suitable inquiry requirements and related access authorization 
requirements at the same time when conducting an employment inquiry.
    Goal 6--Improve clarity in the organization and language of the 
rule. The proposed rule is organized to facilitate implementation, as 
compared to the current rule which has generated many questions from 
licensees. Therefore, in the proposed rule, the NRC has substantially 
reorganized the requirements to eliminate redundancies, to group 
related requirements, and to present requirements in the order in which 
they would apply to licensees' FFD processes. In addition, the NRC has 
proposed many language changes to improve clarity. The NRC has 
undertaken this substantial reorganization to improve the protection of 
public health and safety and the common defense and security by 
substantially reducing the likelihood of variations in FFD programs 
across the industry through differing interpretations of the rule. The 
proposed rule is clearer in both organization and language, and is 
expected to result in more uniform implementation, and, consequently, 
more consistency in achieving the Part 26 goals.
    In contrast to certain NRC regulations, Part 26 includes a 
considerable number of detailed requirements. In the public meetings 
held during the development of this proposed rule, industry 
representatives indicated that they consider this level of detail 
necessary to help protect individual privacy and ensure consistency in 
implementing the requirements. Additionally, industry representatives 
indicated that this high level of detail can help to avoid unnecessary 
litigation between licensees and individual personnel regarding worker 
non-compliance with specific drug and alcohol testing performance 
steps. Such litigation would be more likely if those specific 
performance steps were not required by NRC rule. The level of detail 
and the enhanced clarity in the new language and organization included 
in proposed Part 26 have eliminated the need for a guidance document. 
In the public meetings described in Section V, industry representatives 
commented that a guidance document would not have the same weight as a 
rule, and that both licensees and individuals should be protected fully 
with rigor and specificity in a rule. Industry therefore desired the 
rule to be more specific and detailed, in lieu of a guidance document.
    Goal 7--Protect the privacy and due process rights of individuals 
who are subject to 10 CFR Part 26. This goal is an implicit objective 
of the current rule, and the proposed rule would also continue to 
protect the privacy and due process rights of individuals who are 
subject to 10 CFR Part 26. The NRC, DOT, and HHS have all gained 
experience in implementing workplace drug and alcohol testing programs. 
This experience has led DOT and HHS to modify many of their 
requirements for such testing to more clearly protect privacy and due 
process rights of individuals. Many of the proposed changes to Part 26 
related to this goal are based on either DOT or HHS requirements. The 
NRC believes the protection of individual rights to be of the highest 
importance, and proposes changes to Part 26 to ensure that those rights 
are protected through rule language developed using the best available 
information. One example of such a change is that ``Bottle B'', the 
second portion of a split urine specimen, would now only be tested with 
the donor's written permission.

C. Overview of Proposed Rule

    The proposed rule would be divided into subparts that contain 
related requirements. This proposed change would be made to improve the 
ease of implementing the rule by grouping related requirements and 
presenting them generally in the order in which they would apply to 
licensees' and other entities' FFD processes. Each subpart would be 
assigned a descriptive title to aid users in locating rule provisions 
and to simplify cross-referencing within the proposed rule. The major 
topics addressed in each subpart and the reasons that the major changes 
are being proposed are described below. A detailed cross-reference 
table between the current and proposed Part 26 provisions is included 
at the end of this notice.
Subpart A Administrative Provisions
    The first subpart, proposed Subpart A [Administrative Provisions], 
would replace the General Provisions portion of the current rule, but 
continue to address the same subject matter. Thus, Subpart A would 
address the purpose and scope of the rule, provide definitions of 
important terms used in the proposed rule, and update current 
provisions related to requests for specific exemptions, interpretations 
of the rule, and communications with the NRC.
Subpart B Program Elements
    Subpart B [Program Elements] of the proposed rule would reorganize 
and amend current Sec. Sec.  26.10-26.29, which specify the performance 
objectives that FFD programs would be required to meet and the FFD 
program elements that licensees and other entities must implement to 
meet the performance objectives. However, the proposed rule would not 
include current Sec.  26.27 [Management actions and sanctions to be 
imposed] in Subpart B for two reasons. First, at the public meetings 
described in Section V. B, stakeholders requested that the rule be 
reorganized to be consistent with the order in which licensees and 
other entities would implement their programs. Because Subpart B would 
be focused on establishing the framework of FFD programs, it would be 
premature to present requirements related to implementing the FFD 
program (i.e., imposing sanctions on an individual for violating the 
FFD policy) at this point in the proposed rule. Second, the 
stakeholders suggested, and the NRC staff concurred after 
consideration, that the subject matter of current Sec.  26.27 is 
sufficiently important and complex that a separate subpart is 
warranted. Therefore, the proposed rule would present requirements 
related to management actions and sanctions in proposed Subpart D 
[Management Actions and Sanctions to be Imposed].
Subpart C Granting and Maintaining Authorization
    Subpart C [Granting and Maintaining Authorization] of the proposed 
rule would substantially amend current FFD requirements related to the 
process that licensees and other entities must follow in determining 
whether an individual is trustworthy and reliable, as demonstrated by 
avoiding substance abuse, and can be expected to perform his or her job 
duties safely and competently. The proposed rule would introduce the 
concept of ``authorization'' to Part 26 to refer to the status of an 
individual who the licensee or other entity has determined can be 
trusted to perform the job duties described in proposed Sec.  26.25 
[Individuals subject to the fitness-for-duty program], as a result of 
the process described in this subpart. For example, in the case of 
nuclear power plant personnel, an individual who is ``authorized'' 
under Part 26 may be permitted to have unescorted access to protected 
areas in nuclear power plants if the individual's job requires such 
access.
    The NRC has published other requirements, such as 10 CFR 73.56, 
that establish additional steps that licensees and other entities must 
take as part of the process of determining whether to grant 
authorization to an individual or permit an individual to

[[Page 50449]]

maintain authorization. These additional requirements focus on aspects 
of an individual's character and reputation other than substance abuse, 
and, among other steps, require the licensee or other entities who are 
subject to the rule to conduct a psychological assessment of the 
individual, a credit and criminal history check, and interview 
individuals who have knowledge of the applicant for authorization. 
However, as discussed in Section IV. B, historically there have been 
some inconsistencies and redundancies between the Part 26 requirements 
related to granting and maintaining authorization and the other, 
related regulations, particularly the NRC's access authorization 
requirements for nuclear power plant personnel. The inconsistencies 
have led to many implementation questions from licensees, as well as 
inconsistencies in how licensees have implemented the requirements. The 
redundancies have, in other cases, imposed an unnecessary burden on 
licensees. Therefore, a central goal of adding Subpart C to the 
proposed rule is to eliminate those inconsistencies and redundancies to 
ensure that licensees and the other entities who are subject to the 
rule have clear and easily interpretable requirements to follow when 
determining whether to grant or maintain an individual's authorization 
under Part 26 and also under other, related requirements, including, 
but not limited to, the access authorization orders issued by the NRC 
to nuclear power plant licensees on January 7, 2003.
    The requirements in proposed Subpart C are based upon several 
fundamental changes to the NRC's approach to the authorization 
requirements in current Part 26. The primary concern, which Subpart C 
is designed to address, is the necessity of increasing the rigor of the 
authorization process to provide reasonable assurance that any 
individual who is granted and maintains authorization is trustworthy 
and reliable, as demonstrated by avoiding substance abuse. The 
necessity for increased rigor in the authorization process is discussed 
in Section IV. C with respect to proposed Sec.  26.23(a) in terms of 
the increased insider threat since the terrorist attacks of September 
11, 2001. One change to current Part 26 authorization requirements that 
reflects this concern is the elimination of temporary access 
authorization requirements in the second sentence of current Sec.  
26.27(a)(4). Other changes are discussed in Section IV with respect to 
the specific provisions that would incorporate them.
    A second, related change to the NRC's approach to authorization 
requirements, which has informed proposed Subpart C, is an increased 
concern with the sharing of information about individuals between 
licensees and other entities. At the time the current Part 26 was 
developed, the industry structure was different and personnel transfers 
between licensees (i.e., leaving the employment of one licensee to work 
for another licensee) with interruptions in authorization were less 
common. Most licensees operated plants at a single site and maintained 
an FFD program that applied only to that site. When an individual left 
employment at one site and began working for another licensee, the 
individual was subject to a different FFD program that often had 
different requirements. Because some licensees were reluctant to share 
information about previous employees with the new employer, licensees 
often did not have access to the information the previous licensee had 
gathered about the individual and so were required to gather the 
necessary information again. The additional effort to collect 
information that another licensee held created an unnecessary burden on 
both licensees. But, because few individuals transferred, the burden 
was not excessive.
    However, since 1989, the industry has undergone significant 
consolidation and developed new business practices to use its workforce 
more efficiently. Industry efforts to better use expertise and staffing 
resources have resulted in the development of a large transient 
workforce within the nuclear industry that travels from site to site as 
needed, such as roving outage crews. Although the industry has always 
relied upon C/Vs for special expertise and staff for outages, the 
number of transient personnel who work solely in the nuclear industry 
has increased and the length of time they are on site has decreased. 
Because the current FFD regulations were written on the basis that 
individual licensees would maintain independent, site-specific FFD 
programs and would share limited information, and that the majority of 
nuclear personnel would remain at one site for years, the regulations 
do not adequately address the transfer of personnel between sites.
    These changes in the industry have increased the need for 
information sharing among licensees and C/Vs. The increased insider 
threat since September 11, 2001, has also heightened the need for 
information sharing among licensees and C/Vs to ensure that licensees 
and other entities have information that is as complete as possible 
about an individual when making an authorization decision. To address 
this need, the access authorization orders issued by the NRC to nuclear 
power plant licensees on January 7, 2003, mandated increased sharing of 
information. In addition, proposed Subpart C would require licensees 
and other entities to collect and share greater amounts of information 
than under the current rule, subject to the protections of individuals' 
privacy that would be specified in proposed Sec.  26.37 [Protection of 
information]. As a result, individuals who are subject to the rule 
would establish a detailed ``track record'' within the industry that 
would follow them if they change jobs and move to a new position that 
requires them to be granted authorization by another licensee or entity 
who is subject to the rule. This increased information sharing would 
contribute to providing reasonable assurance that individuals who are 
granted and maintain authorization are trustworthy and reliable when 
individuals move between FFD programs.
    However, a consequence of increased information sharing is that one 
violation of any licensee's FFD policy has greater potential to end an 
individual's career. Although an individual who has an active substance 
abuse problem cannot be permitted to hold authorization, the NRC 
continues to affirm that individuals who pursue treatment, stop abusing 
drugs or alcohol, and maintain sobriety for an extended period of time 
should regain the public's trust. The length of time that an individual 
must maintain sobriety in order to demonstrate that he or she can again 
be trusted with the public's health and safety and the common defense 
and security has been a matter of debate since Part 26 was originally 
under development. However, the research literature continues to 
indicate that individuals who maintain sobriety past the first 3 years 
following treatment have substantially reduced recidivism rates (i.e., 
relapsing into substance abuse) than during the first 3 years after 
treatment and there is a further drop in recidivism rates after 5 years 
of sobriety.
    Despite these research findings, some individuals who have had one 
confirmed positive test result have been prevented from working in 
operating nuclear power plants. The increased information sharing that 
would be required under Subpart C has the potential to result in a 
greater number of such individuals being banned from working in the 
industry. Therefore, several requirements would be added to

[[Page 50450]]

proposed Subpart C to minimize such consequences for individuals who 
are able to demonstrate that they have resolved a substance abuse 
problem. Additional requirements for protecting information that would 
be gathered about individuals under proposed Part 26 would be specified 
in proposed Sec.  26.37 [Protection of information]. The detailed 
changes to current requirements are discussed in Section VI with 
respect to the specific provisions that would incorporate them.
    In general, the authorization requirements in proposed Subpart C 
would be structured according to whether an individual who has applied 
for authorization has previously held authorization under Part 26. If 
an individual has not established a ``track record'' in the industry, 
the proposed rule would require licensees and other entities to meet an 
extensive set of requirements before granting authorization to the 
individual. If an individual has established a favorable track record 
in the industry, the amount of original information gathering that the 
proposed rule would require licensees and other entities to complete 
before granting authorization to the individual would be reduced. The 
need for original information gathering in these instances would be 
reduced because, under the proposed rule, licensees and other entities 
would have access to all of the information that previous FFD programs 
had collected about the individual.
    For individuals who have established a favorable track record in 
the industry, the steps that licensees and other entities would be 
required to complete in order to grant authorization to an individual 
would also depend upon the length of time that has elapsed since the 
individual's last period of authorization was terminated and the amount 
of supervision to which the individual was subject during the 
interruption. (The term, ``interruption,'' refers to the interval of 
time between periods during which an individual holds authorization 
under Part 26.) In general, the more time that has elapsed since an 
individual's last period of authorization ended, the more steps that 
the proposed rule would require licensees and other entities to 
complete before granting authorization to the individual. However, if 
the individual was subject to behavioral observation under a Part 26 
program or continued to be subject to random drug and alcohol testing 
during the interruption, the proposed rule would require licensees and 
other entities to complete fewer steps in order to grant authorization 
to the individual. There are several reasons that the proposed rule 
would require fewer steps in the authorization process for these 
individuals.
    First, individuals who have established a favorable work history in 
the industry have demonstrated their trustworthiness and reliability 
from previous periods of authorization, so they pose less potential 
risk to public health and safety and the common defense and security 
than individuals who are new to the industry. Much is known about these 
individuals. Not only were they subject to the initial background 
screening requirements before they were initially granted 
authorization, but, while they were working under a Part 26 program, 
they were watched carefully through on-going behavioral observation, 
repeatedly attained negative results from random drug and alcohol 
tests, and demonstrated the ability to consistently comply with the 
many procedural requirements that are necessary to perform work safely 
at operating power reactor facilities.
    Second, individuals who have established a favorable work history 
in the industry and whose authorization has been interrupted for only a 
short period would be unlikely to develop an active substance abuse 
problem during the interruption. The shorter the period of time since 
the individual's last period of authorization ended, the less likely it 
is that the individual would have developed an active substance abuse 
problem or undergone significant changes in lifestyle or character that 
would diminish his or her trustworthiness, reliability, and ability to 
perform work safely and competently.
    Further, if the individual was also subject to supervision under 
some elements of a Part 26 program (e.g., behavioral observation, a 
requirement to report any arrests, random drug and alcohol testing) 
during the period that his or her authorization was interrupted, the 
higher the assurance that the individual does not have an active 
substance problem. And, the less likely it would be that the individual 
could have undergone significant changes in lifestyle or character that 
would be undetected.
    Therefore, the proposed rule would establish categories of 
requirements for granting authorization to an individual that would 
vary, based upon whether the individual has previously held 
authorization under Part 26; whether the individual's last period of 
authorization was terminated favorably or unfavorably; how long it has 
been since the individual last held authorization under Part 26; and 
whether the individual was subject to any elements of a Part 26 program 
during the interruption period. Proposed Sec.  26.55 [Initial 
authorization] would establish authorization requirements for 
individuals who have not previously held authorization under Part 26 
and individuals who have not held authorization within the past 3 
years. Proposed Sec.  26.57 [Authorization update] would establish 
authorization requirements for individuals who previously held 
authoriz