[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 502-507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-131]
[[Page Unknown]]
[Federal Register: January 5, 1994]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 26
RIN 3150-AE38
Modifications to Fitness-For-Duty Program Requirements
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations governing fitness-for-duty (FFD) programs that are
applicable to licensees who are authorized to construct or operate
nuclear power reactors and to licensees authorized to possess, use, or
transport formula quantities of strategic special nuclear material
(SSNM). The amendment permits licensees to reduce the random testing
rate for all persons covered by the fitness-for-duty regulations to an
annual rate equal to 50 percent.
EFFECTIVE DATE: January 1, 1994.
ADDRESSES: Copies of the regulatory analysis, the comments received,
and the Government Accounting Office (GAO) report (GAO/GGD-93-13) of
November 1992 may be examined at the NRC Public Document Room, 2120 L
Street NW, (Lower Level), Washington, DC.
Copies of NUREG-1354, NUREG/CR-5758 (Volumes 1, 2, and 3), and
NUREG/CR-5784 may be purchased from the Superintendent of Documents,
U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-
7082. Copies are also available from the National Technical Information
Service, 5282 Port Royal Road, Springfield, VA 22161. A copy is
available for inspection and/or copying for a fee in the NRC Public
Document Room, 2120 L Street NW, (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: Loren L. Bush, Jr., Safeguards Branch,
Division of Radiation Safety and Safeguards, Office of Nuclear Reactor
Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
telephone: (301) 504-2944.
SUPPLEMENTARY INFORMATION:
Background
The NRC has reviewed experiences gained since publication of the
current FFD rule on June 7, 1989 (54 FR 24468), and implementation by
power reactor licensees on January 3, 1990, and determined that it may
be appropriate to modify the random testing rate. Accordingly, on March
24, 1993 (58 FR 15810), the Commission published a proposed
modification to the FFD rule that would permit a reduction in the
random testing rate for licensee employees, but maintain the 100-
percent random testing rate for contractors and vendors.
Summary of Public Comments
The comment period expired on June 22, 1993. Forty comment letters
were received. Twenty-eight were from power reactor licensees, six from
unions, one from an industry association, one from a vendor, three from
licensed reactor operators, and one from a private citizen. There was
overwhelming support for the proposed reduction in the annual rate of
random testing for licensee employees. Most of the commenters believed
that the reduced rate also should apply to contractors and vendors, and
several commenters proposed a flexible, performance-based rate. There
was no support for excluding from any reduction in the random testing
rate certain positions critical to the safe operation of a nuclear
power plant, such as licensed reactor operators. A summary of the
comments received and the NRC's responses are presented below.
1. Comment. The random testing rate for licensee employees should
be reduced to 50 percent.
All of the 23 commenters submitting comments on the Commission's
proposed reduction of the random testing rate to 50 percent for
licensee employees supported the proposal. The reason most often
expressed was the low rate of positive random test results experienced
by licensee employees, particularly in comparison with other industries
having significant safety concerns. These commenters believe that this
low industry-wide positive rate justifies the lowering of the random
testing rate to 50 percent. Some commenters stated that a 50-percent
rate for licensee employees would make that rate consistent with the
random testing rate currently required in the substance abuse programs
mandated for entities regulated by the agencies within the Department
of Transportation (DOT), including the Federal Aviation Administration
and the Federal Highway Administration. They also noted that DOT is
currently considering lowering its proposed random testing rate below
50 percent even though Federal Highway Administration data, for
example, indicate a significantly higher positive rate than that
experienced among NRC licensee employees. Another commenter pointed out
that the lowered random testing rate for licensee employees subject to
the NRC's FFD rule also would be consistent with the random rate
applied in the Commission's own internal drug testing program.
Other commenters supported the reduction with the expectation of
significant cost savings for licensees as a result of only testing
approximately one-half the number of employees now being tested. In
this regard, the Nuclear Management and Resources Council (NUMARC) made
reference to the November 1992 GAO report, ``Employee Drug Testing:
Opportunities Exist To Lower Drug-Testing Program Costs'' (GAO/GGD-93-
13), which suggests reduced random testing rates as a means of
producing cost efficiencies in Federally mandated drug testing programs
without adversely affecting program integrity.
Concerning the relative effectiveness of alternative random testing
rates, some commenters believe that a 50-percent random testing rate
would produce satisfactory deterrence of drug and alcohol abuse. This
is particularly true in light of the fact that other FFD program
elements, such as program awareness training and behavioral
observation, and the access authorization program will continue to
inhibit such behavior. Two commenters also supported the proposed
change because it would lessen the disruption of workers lives and
reduce the invasion of privacy that random drug testing creates.
NRC Response
The NRC concurs with those commenters who stated that a 50-percent
random testing rate as applied to licensee employees can be expected to
provide sufficient deterrence to justify lowering the rate at this
time. It also agrees with the observation that the access authorization
program and other FFD program elements, such as policy communications
and awareness training, behavioral observation, for-cause testing,
employee assistance programs, and the imposition of strict sanctions
for violations of an FFD policy will continue to deter drug and alcohol
abuse by most of the workforce. As some commenters noted, requiring
fewer tests of licensee employees should decrease the privacy invasion
experienced by some employees. It also should result in cost savings
across the industry by reducing lost work hours and the number of tests
to be administered.
The Commission recognizes that positive results in the nuclear
power industry's random testing are generally among the lowest of any
U.S. industry. Nonetheless, it realizes that there are many variables
that can affect the rate of positive testing results and that
relatively low positive test results, by themselves, are not the only
indicator of the effectiveness of a testing program either on an
industry-wide or a licensee program level. Some of the variables that
could affect the testing results are the propensity of the population
being tested to use drugs and alcohol, the effectiveness of other
program elements, and the extent to which tested employees have been
successful in subverting the testing process and avoiding detection.
The NRC does not have sufficient information about these or other
factors that may influence testing results to be able to determine that
the decreasing positive rates reported by licensees are an unqualified
indication of FFD program effectiveness. Nonetheless, the Commission is
gratified to observe the decreasing positive rates in licensee
employees' random test results during the past three years. The
recently published NUREG/CR-5758, Volume 3, ``Fitness for Duty in the
Nuclear Power Industry: Annual Summary of Program Performance
Reports,'' indicates that licensee employees' positive random testing
rate in 1992 was 0.20 percent as compared to 0.28 percent in 1990 and
0.22 percent in 1991. There also have been decreasing positive rates
for random testing of contractor and vendor personnel, viz., 0.56
percent in 1990, 0.55 percent in 1991, and 0.45 percent in 1992.
In making its decision, the Commission has considered these testing
results along with the apparent continuing strength of the other
elements of most licensees' FFD programs, the reduced invasion of
employees' privacy interests, and the potential for cost savings. In
light of this industry experience and of these beneficial effects, the
Commission has concluded that it is reasonable at this time to lower
the random testing rate for licensee employees and contractor and
vendor personnel to 50 percent. The response to Comment 4 discusses the
Commission's reasons for allowing reduction in the random testing rate
for contractor and vendor personnel.
2. Comment. The random testing rate should be reduced to less than
50 percent.
Four commenters recommended that the random testing rate be reduced
to less than 50 percent. The rates they recommended varied from 5
percent to 25 percent. Their central argument was that the random
testing rate can be lowered substantially without threatening the
effectiveness of the program. The very low rates of drug and alcohol
positive tests that have been recorded by the nuclear industry during
the first two years of FFD program operations are the basis for their
recommendation. One licensee stated that most chronic drug users
probably have been eliminated and currently there is not a serious drug
or alcohol abuse problem in the industry. This commenter and NUMARC
also cited the GAO study that found that the percentage of positives
does not vary significantly among Federal agency drug testing programs,
regardless of what random rate is used. Another licensee emphasized
that behavioral observation, not random testing, is the most potent
tool in detecting drug abuse. Another commenter recommended that the
NRC consider further reductions because the effectiveness of other
program elements makes a random rate of even 50 percent unnecessarily
high.
Significant cost savings was given as the most compelling reason to
reduce the random rate below 50 percent. One licensee estimated the
industry would save up to $30 million annually without degradation of
the overall program.
NRC Response
As stated in the response to Comment 1 above, positive random
testing results are not, by themselves, the only indicator of the FFD
program's effectiveness in detecting substance abuse. The NRC does not
have sufficient information about the many variables that could affect
testing results to be able to determine that a lower random testing
rate would maintain an acceptable level of program effectiveness.
Therefore, the Commission believes that the industry's relatively low
numbers of drug and alcohol positive random test results should not be
used as the sole justification for lowering the random testing rate
below 50 percent. While behavorial observation and for-cause testing
are valuable program elements, there still must be a strong random
testing program that provides an adequate level of detection and
deterrence. The Commission continues to believe that it must choose a
conservative and prudent random testing rate that maximizes both
detection and deterrence of substance abuse while minimizing the
monetary and social costs of such testing. The Commission believes that
a 50-percent random testing rate will strike the proper balance between
the dictates of public health and safety, the financial needs of
licensees, and the privacy and other interests of workers subject to
the testing requirement. Given the substantial unknowns currently
associated with the true detection and deterrence effectiveness of
alternative random testing rates as applied to the particular
conditions of the nuclear power industry workforce, the Commission
believes that it cannot establish a random testing rate lower than 50
percent for any segment of the industry at this time.
It should also be noted that relatively low positive test rates do
not necessarily indicate that there is not a drug and alcohol abuse
problem, as some commenters asserted. First, some users have become
adept at avoiding detection, and the use of increasingly effective
subversion techniques may be one reason why random testing results are
decreasing. Second, while it may be that most of the chronic drug users
who were in the industry when the program started have been detected or
have left, there can be expected to be a continuing level of
intermittent illegal drug use and alcohol abuse among industry
employees; such use is difficult to detect. The Commission concludes
that the low positive random test results do not indicate that there
has ceased to be a drug and alcohol abuse problem and that further
reduction in the random testing rate would not be appropriate at this
time.
In response to the commenters' reference to the GAO's observation
that the percentage of positives does not vary significantly among
Federal agency drug testing programs, the NRC notes that the GAO's
objective in that report was to identify potential cost savings in
Federal employee drug testing programs. Its objective did not include
determination of the relative deterrent values of alternative random
testing rates. In accomplishing its objective, the GAO properly
concentrated on only the costs associated with Federal employee drug
testing. It did not perform an indepth analysis of the several
variables that influence testing results nor of the very complex
relationship between those variables and the deterrence value of
testing. Such variables would include the inclination for drug or
alcohol abuse among the employees in the various industries in which
the Federal testing programs operate, the extent to which the strength
and effectiveness of other, non-testing program elements, such as drug
awareness training, may affect testing results, and the relative
stringency of sanctions imposed by the various Federal agencies
following positive test results. Because the GAO's objective was to
address the cost rather than the deterrence effectiveness of testing,
the NRC does not consider the commenter's reference to the GAO's
observation to be a persuasive argument for reduced random testing
rates.
The NRC will continue to monitor implementation of the rule and
will modify the rule in response to industry experience, advances in
technology, or other considerations to ensure that the rule is
achieving the general performance objectives set forth in 10 CFR Part
26.
3. Comment. The random testing rate should be flexible and based on
performance, such as the positive rate of random testing.
Twelve commenters recommended that the Commission allow some form
of performance-based approach to determine the random testing rate.
Under such a system, the random testing rate would vary over time. This
would depend on each licensee's or, alternatively, the industry's
positive random test results from a previous period. One licensee, for
example, suggested that each licensee's random testing rate should be
based upon that particular licensee's previous 12-month testing
results. Under this approach, a licensee would be subject to a minimum
50-percent random testing rate if it experienced a positive rate of
greater than 0.50 percent during the previous 12 months. That licensee
could reduce its random rate to 25 percent if it subsequently had a 12-
month positive rate between 0.25 percent and 0.50 percent or to as low
as 10 percent if its positive rate for the previous year was less than
0.25 percent. Three other licensees recommended similar schemes whereby
a licensee's random rate would be determined by its own record of
positive test results. One of these recommendations based the rate on
the results of the previous 2 years rather than those of the previous
12 months.
NUMARC proposed that the industry-wide random testing rate be
determined by the industry-wide random testing results from the
previous period. This recommendation was endorsed by five licensees.
Under NUMARC's proposed approach, the industry would be allowed by
regulation to adjust its random testing rate based on testing results
from the previous reporting period. All licensees would be required to
test at a 100-percent random rate if the industry-wide positive rate
were greater than 1.0 percent in the previous period, at a 50-percent
random rate if the positive rate was between 0.50 percent and 1.0
percent, at a 25-percent random rate if the positive rate was between
0.25 percent and 0.50 percent, and at a 10-percent random rate if the
positive rate was less than 0.25 percent. Two of the eleven licensees
favoring a performance-based testing system provided a general
recommendation that did not specify whether the random testing rate
should be based on the positive testing results of each individual
licensee, or on the results of the industry as a whole.
The commenters noted various potential advantages of adopting a
performance-based approach to setting the random testing rate. One
stated that adopting such an approach would be consistent with the
NRC's initiative to identify performance-based programs that would be
beneficial to the industry. Another listed cost savings, equity in that
each licensee's random rate would be commensurate with its program
performance, and an incentive for licensees to maximize program
conformance with the FFD rule as advantages of such an approach.
NRC Response
During development of 10 CFR part 26 in 1989, the Commission
considered a variation of the flexible, performance-based random rate
similar to the approaches recommended by these commenters. (See, for
example, the NRC's response to Comment 7.4.2 in NUREG-1354, ``Fitness
for Duty in the Nuclear Power Industry: Responses to Public
Comments.'') At that time, the Commission decided against adopting a
performance-based rate for various reasons. As stated above, positive
random testing results are not the only indicator of detection and
deterrence effectiveness or of overall random testing program
performance to allow the testing rate to vary with testing results.
Adopting a performance-based approach would tend to discourage the
initiatives that the Commission is encouraging in 10 CFR 26.24(b) and
in Section 2.1 of Appendix A to Part 26. In Sec. 26.24(b), the NRC
allows licensees to implement programs with more stringent standards,
for example, lower screening and confirmation cutoff levels and a
broader panel of drugs than those specified in the rule. In Section 2.1
of Appendix A, licensees are permitted to test for any illegal drugs
during a for-cause test or analysis of specimens suspected of being
adulterated or diluted. Program performance data for the first three
years of FFD program implementation have shown that those licensees
using screening cutoff levels for marijuana that are lower than the
maximum allowed 100 nanograms per milliliter (ng/ml) have had a higher
percentage of confirmed positive results than those screening at 100
ng/ml. (See NUREG/CR-5758, Vols. 1-3.) Licensees that employ special
measures to detect attempts to dilute specimens or flush metabolites
from the body report that their positive rate is about doubled. This
result is similar to data presented to the Department of Health and
Human Services' Drug Testing Advisory Board on June 10, 1993, and
reported in ``The National Report on Substance Abuse'' on June 18,
1993. (The study is currently undergoing peer review before
publication.) Adopting a performance-based approach that allowed
licensees to reduce their random testing rates as positive testing
results declined would likely discourage licensees from adopting lower
screening cutoff levels and taking measures to detect attempts by users
to avoid detection.
Lastly, a performance-based approach would require the collection
and analysis of performance data to provide the bases for adjustments
to the random testing rate. Such data is not currently collected by the
licensees or the NRC. Previous efforts known to the NRC staff to
identify and analyze the many candidate performance indicators for
measuring the effectiveness of random testing have been inconclusive,
primarily because of the numerous variables. Furthermore, assuming that
the proper performance indicators can be developed, it would appear
that the collection and analysis of data to support a performance-based
approach would add a considerable administrative burden to both
licensees and the NRC.
For all these reasons and until further experience is gained that
would support a performance-based approach, the Commission declines to
adopt such an approach to setting the random testing rate.
4. Comment. The reduction in the random testing rate should be
applied to all workers.
Four of the 30 commenters on this issue--three unions and one
licensee--supported the Commission's proposal that licensees maintain
the 100-percent random testing rate for contractor and vendor
employees. Their reasons included a concern for lack of commitment by
contractor employees to maintaining the industry's high drug-free
standard and the need for the higher testing rate to provide continued
deterrence for contractor employees. One of the three unions
recommended that long-term contractors should have the same lower
random testing rate as that of licensee employees because test results
of long-term contractors and licensee employees have been almost
identical.
There were several issues consistently mentioned by those 26
commenters who opposed maintaining the 100-percent random testing rate
for contractor and vendor employees. There was a general concern for
unnecessary inconsistencies in random testing rates between Federal
agencies. Commenters recommended that the NRC program be kept as
consistent as possible with programs in other Federally regulated
safety-related industries. These include the DOT programs that
currently require contractors and vendors to be randomly tested at a
50-percent rate.
Various licensees cited the testing results from 1990 and 1991
which, in their opinion, create no statistically sound rationale for
testing contractor and vendor employees at a rate different from that
of licensee employees. They argued that, while the contractor/vendor
positive testing rate has been twice that of licensee employees, it is
still low enough to make unnecessary the expenditure of the resources
necessary to maintain two separate random testing pools.
Various commenters noted that contractors and vendors are subject
to the identical access authorization and other FFD program
requirements as are licensee employees, including behavioral
observation. These stringent requirements, in their view, obviate the
need to keep the contractor/vendor random rate at 100 percent. Some
also noted that the deterrent value of random testing is in the act of
testing itself and not in what many consider to be a high rate of
testing. Some commenters warned that keeping contractors and vendors at
100 percent could be construed as discriminatory against those
employees and may be perceived as punitive rather than as a corrective
measure. Two licensees also cited a study of the detection
effectiveness of nine random testing rates published in NUREG/CR-5784,
``Fitness for Duty in the Nuclear Power Industry: A Review of the First
Year of Program Performance and an Update of the Technical Issues,''
which indicates that a 100-percent testing rate is only a little more
effective than a 50-percent rate for detecting occasional drug users.
NRC Response
Although there is a difference between the positive results of
random testing of licensee employees and those of contractor and vendor
employees, the positive random testing rate of both groups has been
less in each year since 1990, as stated in the response to Comment 1
above. While the contractor/vendor random testing positive rates
continue to be about twice the rate for licensee employees and
statistical analysis of the data shows that the difference in
proportion between the contractors' and licensees' employees is not
explained within statistical fluctuations (therefore, differences in
the rates are statistically significant), the Commission agrees that
the absolute numbers of positive test results of all categories of
nuclear power workers are low. Therefore, the Commission will permit
its licensees to lower the random testing rate to 50 percent for all
persons covered by 10 CFR part 26. However, the Commission will
continue to monitor licensee program performance and effectiveness and
will make program adjustments as necessary.
In response to the comments regarding the study of the detection
effectiveness of nine random testing rates published in NUREG/CR-5784,
the Commission notes that the study explicitly dealt with only the
hypothetical detection effectiveness of those alternatives. It did not
address their relative deterrence effectiveness. While it may be that
the effectiveness of a 100-percent random testing rate for deterring
occasional drug users could be slightly higher than that of a 50-
percent rate, the Commission nonetheless believes that a 50-percent
random testing rate will provide sufficient deterrence to drug and
alcohol abuse by contractor and vendor employees.
With respect to commenters' concerns about unnecessary
inconsistencies in random testing rates between Federal agencies, the
Commission continues to believe that the random test rate for employees
in the nuclear power industry need not be similar to the rates applied
to employees in all, or even most, other Federal agencies or Federally
mandated programs. Not all Federal agencies have identical safety
concerns or responsibilities.
5. Comment. There should be no difference in the random testing
rate for certain positions critical to the safe operation of a nuclear
power plant.
Seventeen commenters responded to the Commission's question as to
whether certain positions critical to the safe operation of a nuclear
power plant, such as licensed reactor operators, should be excluded
from any reduction of the random testing rate. All these commenters
recommended against such differentiation. Two licensees stated that
treating people in positions critical to safety differently from other
employees could have a negative effect on the morale, self-image, and
motivation of this group of highly trained and dedicated specialists.
Another stated that all plant employees are critical to safe operation.
Therefore, a reduction in the random testing rate should apply to all
employees. The potential for added record-keeping requirements creating
unnecessary burdens for the industry was another reason for not making
this distinction. In the opinion of one commenter, the 1990-1992
industry-wide program performance data do not support testing people in
positions critical to safety at a different rate than that applied to
other licensee employees. Finally, one licensee cited potential
problems getting union agreement to testing this classification of
employees at a higher rate than other licensee personnel subject to the
FFD rule.
NRC Response
The essence and unanimity of these comments--that licensed
operators and other employees in positions critical to the safe
operation of a nuclear power plant should not be excluded from a
reduction of the random testing rate--is not surprising. These
particular members of the nuclear power industry's workforce have
collectively demonstrated their dedication to safe and efficient plant
operations. As at least one commenter noted, the industry's program
performance data for the first three years of operation do not support
differentiating between people in safety-critical positions and other
licensee employees insofar as the random testing rate is concerned. The
1992 program performance data, for example, show that eighteen of the
industry's approximately 5,000 licensed operators tested positive for
drugs or alcohol or otherwise violated the licensee's FFD policy;
twelve of these were a result of random testing. When comparing these
results to the 461 positive results out of 156,730 random tests
administered to the industry workforce, the difference in proportion
between the licensed operators and the industry workforce is within
statistical fluctuations and the difference in the positive rates is
not statistically significant. While the NRC expects licensees to
continue to take action to drive this number of positives down even
further, this record does not merit testing people in these positions
at a rate different from that applied to other licensee employees. The
Commission, therefore, concurs with the commenters' recommendation that
certain positions critical to the safe operation of a nuclear power
plant, such as licensed reactor operators, should not be excluded from
a reduction of the random testing rate.
6. Comment. Random testing is expensive and produces false
positives. Furthermore, chronic users are able to avoid detection.
Two commenters, a power plant worker and a union, argued against
the usefulness of continued random testing. One of these commenters
stated that random testing produces false positives. These cost the
industry large amounts of money in settlements and damage the public's
perception of licensees' fairness. As additional support for this
position, this commenter warned that chronic drug abusers are
particularly adept at escaping detection from random testing by
subverting the testing process. The other commenter recommended that
random testing be eliminated because it is not effective in identifying
workers who are impaired at the time urine samples are collected. For-
cause testing, in this commenter's opinion, is more effective because
it more accurately reflects a worker's present ability to perform his/
her job at the time he/she is tested. This commenter also stated that
random testing appears to be a means of having the NRC enforce the
Controlled Substances Act which is not the NRC's responsibility.
NRC Response
The Commission has long been well aware of the types of FFD
program-related concerns as addressed by these commenters. During the
promulgation of 10 CFR part 26 in 1989, the Commission fully addressed
these and many other such concerns. (See NUREG-1354, ``Fitness for Duty
in the Nuclear Power Industry: Responses to Public Comments.'') At that
time the NRC concluded, for example, that licensee FFD programs should
be concerned not only with impairment, but also with worker reliability
and trustworthiness. The NRC believes that any illegal drug use or
alcohol abuse by a worker reflects upon his or her trustworthiness and
reliability. Likewise, random testing is not intended, nor has it ever
functioned, as a means to enforce the Controlled Substances Act.
Section 26.29(b) provides that licensees, contractors, and vendors
shall not disclose test results to law enforcement officials unless
those officials request such information under court order. It also is
noted that there is no requirement to routinely provide such officials
with testing results.
The Commission is well aware that there is a potential for false
positive results and, therefore, has required numerous quality control
measures and safeguards to prevent such occurrences. In Appendix D to
NUREG/CR-5758, Volume 3, the testing process errors that were reported
by licensees during the first three years under the FFD rule were
analyzed. Of over 800,000 specimens tested, there were two false
positives of personnel specimens reported by the laboratories, both due
to administrative errors. In both cases, the quality assurance programs
detected and corrected the problem.
Because of the NRC's particular concern with the degree to which
the testing process can be subverted, the Commission staff has
continued to track the ways in which workers have subverted testing
processes in industries across the country. These efforts have resulted
in staff recommendations for amending 10 CFR part 26 to introduce
various means for combatting subversion. Lastly, the Commission
believes that the added protection of public health and safety that the
FFD program provides is well worth the industry's costs of
administering this program.
7. Comment. Maintaining two separate populations of workers for
random testing is an unnecessary and expensive burden.
Some of the commenters stated that requiring two random testing
rates would force licensees to develop two separate testing programs.
The resulting additional administrative and financial burdens would
cancel out any savings resulting from reducing the licensee employee
rate to 50 percent. NUMARC stated that the industry would save
approximately $4.1 million if the number of tests of contractor and
vendor employees was cut in half.
NRC Response
Some of the comments noted above asserted that separate random
testing rates for licensee employees and contractors/vendors would
create additional administrative and financial burdens for licensees.
Although this issue is somewhat moot since the Commission will permit
licensees to reduce the random testing rate to 50 percent per year for
all persons covered by Part 26, the Commission does not concur that
conducting random testing using two random rates would have caused
appreciably higher administrative or operating costs. Presumably, most
licensees' data bases already distinguish between licensee employees
and contractor/vendor employees subject to testing. Numerous commenters
on the initial rule in 1989 indicated that the workforce population
should be separated so that permanent employees would not be tested at
a much higher rate to make up for contractors who might not be on site
when selected for testing (see comment/response 7.4.3 of NUREG-1354).
The NRC staff understands that several licensees have divided their
testing population as permitted by the rule. The number and identity of
licensee employees in the testing pool remains rather constant over
time. The number and identity of contractor/vendor employees in the
testing pool, on the other hand, varies quite considerably over time
depending on outages and other operational considerations. A licensee
may choose to create more than one test population so that it may test
portions of its workforce at a greater rate or reduce the burden on its
employees from being tested at a higher rate to compensate for the
testing of contractors and vendors not normally on site.
8. Comment. The Commission should modify certain portions of 10 CFR
part 26 based on industry experience and lessons learned and
incorporate numerous program enhancements as discussed at various
industry forums.
Eight commenters recommended that the Commission make future
modifications to certain portions of 10 CFR part 26 based on industry
experience and lessons learned and incorporate numerous program
enhancements as discussed at various industry forums.
NRC Response
The specific recommendations for ways in which part 26 can be
improved and numerous other program enhancements are currently being
considered by the NRC in conjunction with a general package of rule
revisions currently under development.
Environmental Impact: Categorical Exclusion
The NRC has determined that this final rule is the type of action
described in categorical exclusion 10 CFR 51.22(c)(2). Therefore, the
NRC has not prepared an environmental impact statement, nor an
environmental assessment for this final rule.
Paperwork Reduction Act Statement
This final rule amends information collection requirements that are
subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.)
These requirements and amendments were approved by the Office of
Management and Budget, approval number 3150-0146.
Since the rule will permit licensees to reduce the random testing
rate for their employees, the resulting reduction in the reporting and
recordkeeping burden is expected to be an average of 223 hours per
site, including the time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information. Send comments regarding
this burden estimate or any other aspect of this collection of
information, including suggestions for reducing this burden, to the
Information and Records Management Branch (MNBB-7714), U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, and to the Desk
Officer, Office of Information and Regulatory Affairs, NEOB-3019 (3150-
0146), Office of Management and Budget, Washington, DC 20503.
Regulatory Analysis
The NRC has prepared a regulatory analysis for this regulation. The
analysis examines the costs and benefits of the alternatives considered
by the Commission. The analysis is available for inspection in the NRC
Public Document Room, 2120 L Street NW (Lower Level), Washington, DC.
Single copies of the analysis may be obtained from Loren L. Bush, Jr.,
Division of Radiation Safety and Safeguards, Office of Nuclear Reactor
Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
telephone (301) 504-2944.
Regulatory Flexibility Act Certification
In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C.
605(b)), the Commission certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
This rule affects only the licensing and operation of nuclear power
plants and activities associated with the possession or transportation
of Category I material. The companies that own these plants do not fall
within the scope of the definition of ``small entities'' set forth in
the Regulatory Flexibility Act or the Small Business Size Standards
issued by the Small Business Administration in 13 CFR part 121.
Backfit Analysis
The rule represents a relaxation from current part 26 requirements
for drug testing since the rule permits (but does not require)
licensees to reduce the random testing rate for all persons covered by
the rule. Accordingly, the rule does not represent a backfit as defined
in 10 CFR 50.109(a)(1), and a backfit analysis is not required for this
rule.
List of Subjects in 10 CFR Part 26
Alcohol abuse, Alcohol testing, Appeals, Chemical testing, Drug
abuse, Drug testing, Employee assistance programs, Fitness for duty,
Hazardous materials transportation, Management actions, Nuclear
materials, Nuclear power plants and reactors, Penalties, Protection of
information, Radiation protection, Reporting and recordkeeping
requirements, Sanctions, Special nuclear materials.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended, the Energy Reorganization
Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting
the following amendment to 10 CFR part 26.
PART 26--FITNESS FOR DUTY PROGRAMS
1. The authority citation for part 26 continues to read as follows:
Authority: Secs. 53, 81, 103, 104, 107, 161, 68 Stat. 930, 935,
936, 937, 939, 948, as amended (42 U.S.C. 2073, 2111, 2112, 2133,
2134, 2137, 2201); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246,
as amended (42 U.S.C. 5841, 5842, 5846).
2. In Sec. 26.24 paragraph (a)(2) is revised to read as follows:
Sec. 26.24 Chemical and alcohol testing
(a) * * *
(2) Unannounced drug and alcohol tests imposed in a statistically
random and unpredictable manner so that all persons in the population
subject to testing have an equal probability of being selected and
tested. The tests must be administered so that a person completing a
test is immediately eligible for another unannounced test. As a
minimum, tests must be administered on a nominal weekly frequency and
at various times during the day. Random testing must be conducted at an
annual rate equal to at least 50 percent of the workforce.
* * * * *
Dated at Rockville, Maryland, this 29th day of December, 1993.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Acting Secretary of the Commission.
[FR Doc. 94-131 Filed 1-4-94; 8:45 am]
BILLING CODE 7590-01-P
