81 FR 69010 - Processing Fitness-for-Duty Drug and Alcohol Cases

NUCLEAR REGULATORY COMMISSION

Federal Register Volume 81, Issue 193 (October 5, 2016)

Page Range		69010-69011
FR Document		2016-24073

The U.S. Nuclear Regulatory Commission (NRC) is requesting public comments on proposed revisions to its Enforcement Policy (the Policy). The NRC is proposing to revise Section 4.1, ``Considerations in Determining Enforcement Actions Involving Individuals,'' of the Policy to indicate that the NRC typically will not consider Fitness- for-Duty (FFD) Drug and Alcohol (D&A) related violations for enforcement unless the licensee's FFD program has apparent deficiencies.

Federal Register, Volume 81 Issue 193 (Wednesday, October 5, 2016)

[Federal Register Volume 81, Number 193 (Wednesday, October 5, 2016)]
[Proposed Rules]
[Pages 69010-69011]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-24073]


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NUCLEAR REGULATORY COMMISSION

10 CFR Chapter I

[NRC-2016-0185]


Processing Fitness-for-Duty Drug and Alcohol Cases

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy revision; request for comment.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is requesting 
public comments on proposed revisions to its Enforcement Policy (the 
Policy). The NRC is proposing to revise Section 4.1, ``Considerations 
in Determining Enforcement Actions Involving Individuals,'' of the 
Policy to indicate that the NRC typically will not consider Fitness-
for-Duty (FFD) Drug and Alcohol (D&A) related violations for 
enforcement unless the licensee's FFD program has apparent 
deficiencies.

DATES: Submit comments by November 4, 2016. Comments received after 
this date will be considered if it is practical to do so, but the NRC 
is able to assure consideration only for comments received on or before 
this date.

ADDRESSES: You may submit comments by any of the following methods 
(unless this document describes a different method for submitting 
comments on a specific subject):
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0185. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     Email comments to: [email protected]. If you do 
not receive an automatic email reply confirming receipt, then contact 
us at 301-415-1677.
     Fax comments to: Secretary, U.S. Nuclear Regulatory 
Commission at 301-415-1101.
     Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and 
Adjudications Staff.
     Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal 
workdays; telephone: 301-415-1677.
    For additional direction on obtaining information and submitting 
comments, see ``Obtaining Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: David Furst, Office of Enforcement, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; 
telephone: 301-415-7634, email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Obtaining Information and Submitting Comments

A. Obtaining Information

    Please refer to Docket ID NRC-2016-0185 when contacting the NRC 
about the availability of information for this action. You may obtain 
publicly-available information related to this action by any of the 
following methods:
     Federal rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0185.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and 
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS, 
please contact the NRC's Public Document Room (PDR) reference staff at 
1-800-397-4209, 301-415-4737, or by email to [email protected]. The 
ADAMS accession number for each document referenced (if it is available 
in ADAMS) is provided the first time that it is mentioned in this 
document.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments

    Please include Docket ID NRC-2016-0185 in your comment submission.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly

[[Page 69011]]

disclosed in your comment submission. The NRC will post all comment 
submissions at http://www.regulations.gov as well as enter the comment 
submissions into ADAMS. The NRC does not routinely edit comment 
submissions to remove identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment into ADAMS.

II. Discussion

    On January 31, 2016, the NRC staff submitted to the Commission 
SECY-16-0009, ``Recommendations Resulting from the Integrated 
Prioritization and Re-Baselining of Agency Activities,'' dated January 
31, 2016 (ADAMS Package Accession No. ML16028A189). Item 101 in 
Enclosure 1 of SECY-16-0009 included the NRC staff's recommendations 
for creating efficiencies in the Enforcement Process, in part by 
reducing FFD case processing.
    In developing potential efficiencies in the enforcement program, 
the NRC staff concluded that not processing routine cases involving D&A 
issues would reduce NRC staff resources without impacting safety, as 
discussed more fully below.
    The Commission approved the NRC staff's recommendation to reduce 
FFD case processing in the Staff Requirements Memorandum for SECY-16-
0009, dated April 13, 2016 (ADAMS Accession No. ML16104A158).
    Part 26 of title 10 of the Code of Federal Regulations (10 CFR) 
requires licensees to establish D&A testing programs and report test 
results to the NRC. The NRC's Office of Investigations (OI) 
investigates FFD D&A cases, many of which involve an individual who 
violates FFD D&A procedures at a site. Typically, the licensee has 
identified the issue and conducted an internal investigation yielding 
evidence of an FFD D&A violation by the time they notify the NRC. In 
most cases, pursuant to 10 CFR part 26, the site FFD D&A policy 
provides penalties for specific violations. The NRC believes that 
individual FFD D&A issues generally are dispositioned by the licensee 
according to the programs in place. Therefore, NRC staff review of 
individual FFD D&A cases appears to be an area where the NRC can make 
efficiency gains. The NRC is proposing changes to the enforcement 
process with respect to FFD D&A cases where an individual violates the 
site FFD D&A procedure, but where there is no breakdown in the 
performance of the FFD process itself.
    On March 31, 2008 (73 FR 16965), the NRC amended 10 CFR part 26, in 
part, to strengthen the D&A testing requirements and broaden the scope 
of D&A testing to other NRC licensees (e.g., owner operators of uranium 
fuel fabrication facilities) and to persons who perform safety or 
security-significant activities within the protected areas (PA) of 
these sites. The NRC implemented an electronic reporting (e-reporting) 
system to simplify and improve FFD data reporting and to enable the 
reporting of additional voluntary information to the NRC.
    Based on the FFD performance information reported electronically to 
the NRC since 2009 and a comparison of this information to previous 
years and other indicators, the commercial nuclear industry continues 
to effectively implement the 10 CFR part 26 D&A provisions and FFD 
program results have directly contributed to public health and safety 
and the common defense and security. Licensees identify persons under 
the influence of illicit drugs and/or alcohol and remove them from the 
PA of NRC-licensed facilities, and licensees identify persons of 
questionable trustworthiness and reliability, in part, through rigorous 
testing methods (e.g., limit-of-detection testing, cutoffs, and 
effective monitoring during specimen collections). These outcomes 
provide reasonable assurance that persons who perform safety or 
security-significant activities, or who have unescorted access to 
certain NRC-licensed facilities, information, or material, are fit-for-
duty, and that the public and the NRC are timely informed of FFD 
performance. The data indicates no adverse trends.
    Since March 31, 2008, when the NRC amended 10 CFR part 26, the NRC 
has processed approximately 40 FFD D&A related cases in which OI 
investigated instances of individuals violating FFD D&A procedures at 
licensee sites. These types of cases result from a range of issues 
including failed drug tests, alleged attempts to subvert FFD testing, 
alleged possession or use of illegal drugs or alcohol, or alleged 
misuse or failure to report the use of prescription drugs. Typically 
the issues are discovered, investigated by, and reported to the NRC by 
licensees using the e-reporting system. By the time the NRC implements 
the process to investigate, the licensees have imposed the appropriate 
10 CFR part 26 sanctions.
    In many regards, 10 CFR part 26 is unique in comparison to other 10 
CFR regulations; for example, explicit sanctions are specified for 
individuals who violate FFD policy. Section 26.75, ``Sanctions,'' 
specifies, in part, the minimum sanctions that licensees and other 
entities shall impose when an individual has violated the D&A 
provisions of their FFD policy (e.g., immediate unfavorable termination 
of the individual's authorization for at least 14 days for the first 
violation and 5 years for the second violation, and permanent denial of 
access for any act or attempted act to subvert the testing process). 
The requirement also states that the licensee or other entity may 
impose more stringent sanctions.
    A limited exception to the proposal to not process FFD cases is 
when NRC staff identifies an apparent breakdown of the licensee's FFD 
program itself. Any case involving an alleged breakdown of the FFD 
program itself would be reviewed and considered for an NRC enforcement 
sanction.

III. Proposed Revisions

    The NRC can gain efficiency in its enforcement program if it elects 
to no longer pursue D&A cases; this process change is possible because 
10 CFR 26.75 already requires licensees to disposition individual 
violations of their FFD D&A procedures. This process change could be 
implemented by adding the following paragraph at the end of Section 
4.1, ``Considerations in Determining Enforcement Actions Involving 
Individuals:''
    The NRC typically will not consider FFD drug and alcohol related 
violations for enforcement action unless there is an apparent 
deficiency of the licensee's FFD program.
    The proposed revision to the Policy is available in ADAMS under 
Accession No. ML16197A561.

    Dated at Rockville, Maryland, this 29th day of September, 2016.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2016-24073 Filed 10-4-16; 8:45 am]
BILLING CODE 7590-01-P

Federal Register / Vol. 81, No. 193 / Wednesday, October 5, 2016 / Proposed Rules 69011

disclosed in your comment submission. an area where the NRC can make implements the process to investigate,
The NRC will post all comment efficiency gains. The NRC is proposing the licensees have imposed the
submissions at http:// changes to the enforcement process with appropriate 10 CFR part 26 sanctions.
www.regulations.gov as well as enter the respect to FFD D&A cases where an In many regards, 10 CFR part 26 is
comment submissions into ADAMS. individual violates the site FFD D&A
unique in comparison to other 10 CFR
The NRC does not routinely edit procedure, but where there is no
regulations; for example, explicit
comment submissions to remove breakdown in the performance of the
identifying or contact information. FFD process itself. sanctions are specified for individuals
If you are requesting or aggregating On March 31, 2008 (73 FR 16965), the who violate FFD policy. Section 26.75,
comments from other persons for NRC amended 10 CFR part 26, in part, ‘‘Sanctions,’’ specifies, in part, the
submission to the NRC, then you should to strengthen the D&A testing minimum sanctions that licensees and
inform those persons not to include requirements and broaden the scope of other entities shall impose when an
identifying or contact information that D&A testing to other NRC licensees (e.g., individual has violated the D&A
they do not want to be publicly owner operators of uranium fuel provisions of their FFD policy (e.g.,
disclosed in their comment submission. fabrication facilities) and to persons immediate unfavorable termination of
Your request should state that the NRC who perform safety or security- the individual’s authorization for at
does not routinely edit comment significant activities within the least 14 days for the first violation and
submissions to remove such information protected areas (PA) of these sites. The 5 years for the second violation, and
before making the comment NRC implemented an electronic permanent denial of access for any act
submissions available to the public or reporting (e-reporting) system to or attempted act to subvert the testing
entering the comment into ADAMS. simplify and improve FFD data process). The requirement also states
reporting and to enable the reporting of that the licensee or other entity may
II. Discussion
additional voluntary information to the impose more stringent sanctions.
On January 31, 2016, the NRC staff NRC.
submitted to the Commission SECY–16– Based on the FFD performance A limited exception to the proposal to
0009, ‘‘Recommendations Resulting information reported electronically to not process FFD cases is when NRC staff
from the Integrated Prioritization and the NRC since 2009 and a comparison identifies an apparent breakdown of the
Re-Baselining of Agency Activities,’’ of this information to previous years licensee’s FFD program itself. Any case
dated January 31, 2016 (ADAMS and other indicators, the commercial involving an alleged breakdown of the
Package Accession No. ML16028A189). nuclear industry continues to effectively FFD program itself would be reviewed
Item 101 in Enclosure 1 of SECY–16– implement the 10 CFR part 26 D&A and considered for an NRC enforcement
0009 included the NRC staff’s provisions and FFD program results sanction.
recommendations for creating have directly contributed to public
efficiencies in the Enforcement Process, health and safety and the common III. Proposed Revisions
in part by reducing FFD case processing. defense and security. Licensees identify
In developing potential efficiencies in The NRC can gain efficiency in its
persons under the influence of illicit
the enforcement program, the NRC staff drugs and/or alcohol and remove them enforcement program if it elects to no
concluded that not processing routine from the PA of NRC-licensed facilities, longer pursue D&A cases; this process
cases involving D&A issues would and licensees identify persons of change is possible because 10 CFR 26.75
reduce NRC staff resources without questionable trustworthiness and already requires licensees to disposition
impacting safety, as discussed more reliability, in part, through rigorous individual violations of their FFD D&A
fully below. testing methods (e.g., limit-of-detection procedures. This process change could
The Commission approved the NRC testing, cutoffs, and effective monitoring be implemented by adding the following
staff’s recommendation to reduce FFD during specimen collections). These paragraph at the end of Section 4.1,
case processing in the Staff outcomes provide reasonable assurance ‘‘Considerations in Determining
Requirements Memorandum for SECY– that persons who perform safety or Enforcement Actions Involving
16–0009, dated April 13, 2016 (ADAMS security-significant activities, or who Individuals:’’
Accession No. ML16104A158). have unescorted access to certain NRC-
Part 26 of title 10 of the Code of The NRC typically will not consider
licensed facilities, information, or
Federal Regulations (10 CFR) requires FFD drug and alcohol related violations
material, are fit-for-duty, and that the
licensees to establish D&A testing for enforcement action unless there is an
public and the NRC are timely informed
programs and report test results to the of FFD performance. The data indicates apparent deficiency of the licensee’s
NRC. The NRC’s Office of Investigations no adverse trends. FFD program.
(OI) investigates FFD D&A cases, many Since March 31, 2008, when the NRC The proposed revision to the Policy is
of which involve an individual who amended 10 CFR part 26, the NRC has available in ADAMS under Accession
violates FFD D&A procedures at a site. processed approximately 40 FFD D&A No. ML16197A561.
Typically, the licensee has identified related cases in which OI investigated
Dated at Rockville, Maryland, this 29th day
the issue and conducted an internal instances of individuals violating FFD
of September, 2016.
investigation yielding evidence of an D&A procedures at licensee sites. These
FFD D&A violation by the time they types of cases result from a range of For the Nuclear Regulatory Commission.
notify the NRC. In most cases, pursuant issues including failed drug tests, Annette L. Vietti-Cook,
mstockstill on DSK3G9T082PROD with PROPOSALS

to 10 CFR part 26, the site FFD D&A alleged attempts to subvert FFD testing, Secretary of the Commission.
policy provides penalties for specific alleged possession or use of illegal drugs [FR Doc. 2016–24073 Filed 10–4–16; 8:45 am]
violations. The NRC believes that or alcohol, or alleged misuse or failure BILLING CODE 7590–01–P
individual FFD D&A issues generally to report the use of prescription drugs.
are dispositioned by the licensee Typically the issues are discovered,
according to the programs in place. investigated by, and reported to the NRC
Therefore, NRC staff review of by licensees using the e-reporting
individual FFD D&A cases appears to be system. By the time the NRC

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Document Created: 2016-10-05 03:29:09
Document Modified: 2016-10-05 03:29:09

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Policy revision; request for comment.
Dates		Submit comments by November 4, 2016. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.
Contact		David Furst, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7634, email: [email protected]
FR Citation		81 FR 69010