POLICY ISSUE

NOTATION VOTE

February 1, 2002 SECY-02-0023

FOR: The Commissioners

FROM: William D. Travers

Executive Director for Operations

SUBJECT: PROPOSED REVISION TO THE ENFORCEMENT POLICY TO INCLUDE AN

INTERIM POLICY REGARDING ENFORCEMENT DISCRETION FOR

FITNESS-FOR-DUTY ISSUES AND STATUS OF RULEMAKING EFFORT

PURPOSE:

To (1) obtain Commission approval for a proposed revision to the NRC Enforcement Policy (as

addressed in the attached Federal Register notice) to include an interim enforcement policy that

would authorize enforcement discretion with respect to 10 CFR Part 26 practices regarding

“suitable inquiry” and “pre-access testing,” and (2) inform the Commission on the status of the

fitness-for-duty (FFD) rulemaking effort.

BACKGROUND:

In SECY-01-0134, the staff informed the Commission of stakeholder issues associated with

the affirmed final rule on 10 CFR Part 26, “Fitness-for-Duty Programs.” The staff identified

several options for addressing stakeholder concerns and recommended the option that

included: (1) withdrawing the Office of Management and Budget (OMB) clearance request,

(2) requesting additional public comment on all the rule’s provisions, and (3) conducting

several stakeholder meetings concerning a combined access authorization and FFD guidance

document. The staff also informed the Commission that as a result of public meetings with

stakeholders, it had learned of two common practices in the FFD area (suitable inquiry and

pre-access testing) that did not meet the current Part 26 requirements. Given the staff’s

recommendation to withdraw the final rule, the staff developed an approach to address

inconsistent implementation in these areas and recommended that an interim enforcement

policy be created to authorize the exercise of enforcement discretion for licensees that follow

the approach.

In a Staff Requirements Memorandum (SRM) dated October 3, 2001, the Commission

approved the staff’s recommended approach for the rule and also approved the development

of an interim enforcement policy for exercising enforcement discretion with respect to the

practices regarding suitable inquiry and pre-access testing. The Commission also directed the

staff to provide periodic updates on the status of the rulemaking effort.

Contacts: Renée Pedersen, OE 415-2742

Garmon West, Jr., NRR 415-1044
The Commissioners 2

DISCUSSION:

Suitable Inquiry

As previously addressed in SECY-01-0134, with regard to conducting a suitable inquiry in

accordance with 10 CFR 26.27 prior to granting unescorted access, many licensees were

failing to contact employers where an individual candidate was employed for less than 30 days. 

Instead, these licensees followed the practice for background investigations to support

personnel access authorization requirements (10 CFR 73.56). That is, licensees only contacted

employers where the individual candidate was employed for 30 days or more. Although the

requirements are separate, licensees have maintained, and the NRC agrees, that it is

reasonable to use the same practice for both rules.

As such, the staff does not intend to expend inspection resources to address past

noncompliances in this area. Further, the staff has developed the following interim enforcement

policy, until a final rule that would address this issue becomes effective. The NRC normally will

not take enforcement action for a licensee’s failure to contact all employers when an individual

candidate was employed for less than 30 days, provided that a licensee verifies at least one

period of employment status during that 30-day period. For example, during the month of April,

if a transient worker was employed by Employer A for two weeks, by Employer B for one week,

and unemployed for one week, under this interim policy, it would only be necessary to verify the

worker’s status for one of these periods. 

Enforcement action may be taken where a licensee does not follow this practice.

Pre-Access Testing

Prior to granting unescorted access to a candidate for reinstatement or transfer, some

licensees have not been conducting a pre-access test for alcohol and drugs if the candidate

has recently been covered by a Part 26 FFD program (e.g., within the past 30 days). However,

the fact that a candidate was recently covered does not necessarily mean the candidate was

recently tested for drugs and alcohol. Thus, this practice does not satisfy §26.24(a)(1) and the

applicable provisions of the NRC's guidance in NUREG-1385, “Fitness for Duty in the Nuclear

Power Industry: Responses to Implementation Questions.” The rule and guidance state that

an applicant must be tested for drugs and alcohol “within 60 days prior to the initial granting of

unescorted access.” They do not provide an exception for a reinstatement or transfer where

there is little or no break in coverage under a Part 26 FFD program.

As previously stated in SECY-01-0134, the staff believes that it is reasonable that short breaks

in coverage for a reinstatement or a transfer should be treated similar to the case of 

continuous coverage. For example, a worker who is continuously covered, but unavailable for

behavioral observation and possible random testing while on vacation for two or three weeks, 

is generally not given a pre-access test upon return. Also, the practice of omitting the preaccess test when the break in coverage is less than 30 days is similar to NRC’s practice in

related areas. For example, using the guidance endorsed by Regulatory Guide 5.66, licensees

generally do not conduct a background check under §73.56(b)(27)(i) for a candidate for

reinstatement or a transfer when the gap in coverage is less than 30 days. In another 

example, using the guidance in NUREG-1385, an individual covered by a contractor's FFD
The Commissioners 3

 program may take a (reasonably short) period of time to transfer from one site to another

without invoking the need for a pre-access test. 

As such, the staff does not intend to expend inspection resources to address past

noncompliances in this area. Further, until a final rule that would address this issue is

published and becomes effective, under this interim enforcement policy, the NRC normally will

not take enforcement action for a licensee’s failure to conduct a pre-access test for alcohol

and drugs in those cases where an individual has had a short break in FFD coverage, provided

certain conditions are met. That is, the candidate for reinstatement or transfer has been

covered by a Part 26 FFD program for at least 30 of the previous 60 days and has not, in the

past: tested positive for illegal drugs; been subject to a plan for treating substance abuse;

been removed from or made ineligible for activities within the scope of Part 26; or been denied

unescorted access at any other nuclear power plant or other employment in accordance with a

FFD policy.

Enforcement action may be taken where a licensee does not follow this practice.

Status of Rulemaking Effort

As directed by the Commission, the staff met with stakeholders on November 15, 2001,

December 6, 2001, and January 17, 2002, concerning both the proposed FFD rule and access

authorization guidance. The staff has scheduled meetings with stakeholders for February 19-

20, 2002. The staff will continue to provide periodic updates to the Commission on the

rulemaking effort.

RECOMMENDATION:

The staff recommends that the Commission approve publication of the attached Federal

Register notice announcing an immediately effective revision to the Enforcement Policy.

COORDINATION:

The Office of the General Counsel has no legal objection to this paper. 

Notes:

1. The interim enforcement policy will be published in the Federal Register and will

become effective upon publication. Comments on this revision will be accepted for

30 days after publication and will be considered prior to the next revision to the

Enforcement Policy.

2. The appropriate Congressional Committees will be notified.

3. The change to the Policy Statement does not impact information collections that are

subject to the requirements of the Paperwork Reduction Act.

4. The staff has determined that this is not a “major” rule as defined in the Small Business

Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804(2).
The Commissioners 4

5. The Office of Enforcement’s web site will be updated. Necessary changes to the

Enforcement Manual will also be made. 

/RA/

William D. Travers

Executive Director 

 for Operations

Attachment:

Draft Federal Register notice with revision to Enforcement Policy
The Commissioners 5

ADAMS ACCESSION NUMBER: ML020100435

FILE NAME: G:\RENEE\SECY for Fitness for Duty Discretion Policy.wpd

 Publicly Available  Non-Publicly Available  Sensitive  Non-Sensitive

OFFICE OE:ES OE:DD OE:D NRR

NAME RPedersen JGLuehman FJCongel BBoger

DATE 1/11/2002 12/17/2001 1/11/2002 1/18/2002

OFFICE OGC EDO ADM

NAME LChandler WTravers By email

DATE 12/17/2001 02/01/02 12.07/01

OFFICIAL RECORD COPY
[7590-01-P]

NUCLEAR REGULATORY COMMISSION

[NUREG - 1600]

Revision of the NRC Enforcement Policy

AGENCY: Nuclear Regulatory Commission. 

ACTION: Policy statement: revision. 

SUMMARY: The Nuclear Regulatory Commission (NRC) is publishing a revision to its General

Statement of Policy and Procedure for NRC Enforcement Actions (NUREG-1600)

(Enforcement Policy or Policy) to include an interim enforcement policy regarding enforcement

discretion for certain fitness-for-duty issues.

DATES: This revision is effective on (insert date of publication in the Federal Register), while

comments are being received. Submit comments on or before (30 days after publication in the

Federal Register).

ADDRESSES: Submit written comments to: Michael T. Lesar, Chief, Rules and Directives

Branch, Division of Administrative Services, Office of Administration, Mail Stop: T6D59, U. S.

Nuclear Regulatory Commission, Washington, DC 20555-0001. Hand deliver comments to:

11555 Rockville Pike, Rockville, Maryland, between 7:30 a.m. and 4:15 p.m., Federal

workdays. Copies of comments received may be examined at the NRC Public Document

Room, Room O1F23, 11555 Rockville Pike, Rockville, MD. 
2

FOR FURTHER INFORMATION CONTACT: Renée Pedersen, Senior Enforcement

Specialist, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C.

20555-0001, (301) 415-2741, e-mail (RMP@nrc.gov) or Garmon West, Jr., Office of Nuclear

Reactor Regulation, Program Manager, U.S. Nuclear Regulatory Commission, Washington,

D.C. 20555-0001, (301) 415-1044, (fitnessforduty@nrc.gov).

SUPPLEMENTARY INFORMATION:

A proposed amendment to the Fitness-for-Duty (FFD) rule was published on May 9,

1996 (61 FR 21105). After consideration of public comment, a final rule was affirmed by the

Commission on December 4, 2000. When the NRC sought clearance from the Office of

Management and Budget (OMB) to publish the affirmed final rule, stakeholders objected and

expressed a number of concerns regarding the affirmed final rule. Because of stakeholder

concerns and questions about implementation of the final rule, the NRC met with stakeholders

several times to discuss implementation questions and to more fully understand their concerns

about the rule. Given the significance of stakeholder concerns, the NRC considered several

options and concluded on October 3, 2001, that it should: (1) withdraw the OMB clearance

request, (2) request additional public comment on all the rule’s provisions, and (3) conduct

several stakeholder meetings concerning a combined access authorization and FFD guidance

document.

As a result of the public meetings with stakeholders, the NRC learned of two common

practices in FFD areas (suitable inquiry and pre-access testing) that did not meet the current

Part 26 requirements. 

With regard to conducting a suitable inquiry prior to granting unescorted access, many

licensees were failing to contact employers when an individual candidate was employed for
3

less than 30 days in accordance with 10 CFR 26.27. Instead, many licensees followed the

practice for background investigations to support personnel access authorization requirements

set forth in 10 CFR Part 73. That is, licensees only contacted employers when the individual

candidate was employed for 30 days or more. Although the requirements are separate,

licensees have maintained, and the NRC agrees, that it is reasonable to use the same practice

for both rules. A suitable inquiry is very similar to a background check. It involves asking

questions about drug and alcohol use, whereas a background check involves asking questions

about reliability. In fact, a licensee typically contacts a previous employer only once and asks

both sets of questions at that time.

Based on stakeholder input, the NRC has developed an approach to address

inconsistent implementation in this area. Therefore, until a final rule that would address this

issue becomes effective, under this interim enforcement policy, the following approach will be

taken. The NRC normally will not take enforcement action for a licensee’s failure to contact all

employers when an individual candidate was employed for less than 30 days, provided that a

licensee verifies at least one period of employment status during that 30-day period. For

example, during the month of April, if a transient worker was employed by Employer A for two

weeks, Employer B for one week, and unemployed for one week, under this interim policy, it

would only be necessary to verify the worker’s status for one of these periods.

Because this practice requires at least one contact for each 30-day period, the NRC

believes it provides adequate safety. Neither the current rule nor the affirmed final rule

provides an exception for short-term employers. Nevertheless, by requiring at least one

contact for each 30-day period, this practice provides for a reasonable amount of inquiry in a

cost-effective manner. 
4

With regard to pre-access testing, many licensees were failing to conduct a pre-access

test for alcohol and drugs in those cases where an individual was being reinstated or had been

transferred and had been covered by a Part 26 FFD program within the past 30 days. 

Licensees failed to conduct the pre-access testing in these cases because they viewed the

initial FFD pre-access screening as being the same as access authorization initial screening. 

Access authorization initial screening is completed once and, as long as continuous behavioral

observation is maintained, the initial screening is not repeated. Again, although the

requirements are separate, it is understandable how a licensee might mistakenly follow the

same practice for both rules.

The NRC believes that it is reasonable that short breaks in coverage for a

reinstatement or a transfer be treated similar to the case of continuous coverage. For

example, a worker who is continuously covered, but unavailable for behavioral observation and

possible random testing while on vacation for two or three weeks is generally not given a preaccess test upon return. Also, the practice of omitting the pre-access test when the break in

coverage is less than 30 days is similar to NRC’s practice in related areas. For example, using

the guidance endorsed by Regulatory Guide 5.66, “Access Authorization Program for Nuclear

Power Plants, “ June 1991, licensees generally do not conduct a background check under

10 CFR 73.56(b)(27)(i) for a candidate for reinstatement or a transfer when the gap in

coverage is less than 30 days. In another example, using the guidance in NUREG-1385,

“Fitness For Duty in the Nuclear Power Industry: Responses to Implementation Questions,”

October 1989, an individual covered by a contractor's FFD program may take a (reasonably

short) period of time to transfer from one site to another without invoking the need for a preaccess test.

Therefore, until a final rule that would address this issue is published and becomes

effective, under this interim enforcement policy, the NRC normally will not take enforcement
5

action for a licensee’s failure to conduct a pre-access test for alcohol and drugs in those cases

where an individual has had a short break in FFD coverage, provided certain conditions are

met. Specifically, the candidate for reinstatement or transfer has been covered by a Part 26

FFD program for at least 30 of the previous 60 days and has not, in the past: tested positive

for illegal drugs; been subject to a plan for treating substance abuse; been removed from or

made ineligible for activities within the scope of Part 26; or been denied unescorted access at

any other nuclear power plant or other employment in accordance with a FFD policy.

It should be noted that this interim policy provides the same guidance that would have

been allowed under the affirmed final rule. The NRC believes that it provides adequate safety. 

It is important to recognize that this interim policy only applies to candidates for reinstatement

or transfer. These individuals have already demonstrated a negative drug test as part of their

being previously granted unescorted access. They have been subject to random drug testing

(some may have actually had a drug test as part of a program), and they have been subject to

a behavioral observation program within a recent time frame.

In conclusion, based on these factors, and its judgment that both practices provide

adequate safety, the NRC considers the risk associated with issuing an interim enforcement

policy to authorize the use in suitable cases of enforcement discretion pending rulemaking to

be insignificant. 

Accordingly, the proposed revision to the NRC Enforcement Policy reads as follows:

GENERAL STATEMENT OF POLICY AND PROCEDURE FOR NRC ENFORCEMENT

ACTIONS

* ** * *
6

INTERIM ENFORCEMENT POLICIES

* ** * *

Interim Enforcement Policy for Generally Licensed Devices Containing Byproduct

Material (10 CFR 31.5)

* ** * *

Interim Enforcement Policy Regarding Enforcement Discretion for Certain Fitness-forDuty Issues (10 CFR Part 26)

This section sets forth the interim enforcement policy that the NRC will follow to

exercise enforcement discretion for certain violations of requirements in 10 CFR Part 26,

Fitness-for-Duty Programs that occur after (insert date of publication in the Federal Register). 

The policy is in effect until a final revision of 10 CFR Part 26 is issued and becomes effective.

Suitable Inquiry

The regulations in 10 CFR 26.3 and 10 CFR 26.27(a)(2) require that before granting an

individual unescorted access, a licensee must conduct a suitable inquiry consisting of a

"best-effort verification of employment history for the past five years, but in no case less than

three years, obtained through contacts with previous employers to determine if a person was,

in the past, tested positive for illegal drugs, subject to a plan for treating substance abuse,

removed from, or made ineligible for activities within the scope of 10 CFR Part 26, or denied
7

unescorted access at any other nuclear power plant or other employment in accordance with a

fitness-for-duty policy." 

The requirements do not provide an exception regarding short-term employers. 

However, enforcement action will not normally be taken for failure to contact employers when

an individual was employed for less than 30 days, if the following practice is adopted:

If the individual applicant has periods of less than 30 days of contiguous employment or

unemployment, at least one of the periods of employment or unemployment must be verified

for each 30-day period. For example, assume that during the month of April a transient worker

was employed by Employer A for two weeks, employed by Employer B for one week, and

unemployed for one week. Under this interim policy, it would only be necessary to verify one

of the following periods for the month of April: employment with Employer A, employment with

Employer B or unemployment.

The NRC may take enforcement action when a licensee does not follow this practice.

Pre-Access Testing

The regulations in 10 CFR 26.24(a)(1) requires that a person be tested for drugs and

alcohol “within 60 days prior to the initial granting of unescorted access to protected areas...” 

The requirement does not provide an exception when an individual is reinstated at a

facility or transferred to another facility where there is little or no break in coverage under a

Part 26 Fitness for Duty (FFD) program. However, enforcement action will not normally be

taken for failure to conduct a pre-access test for alcohol and drugs in those cases where an
8

individual has recently been covered by a Part 26 FFD program (e.g., within the past 30 days),

if the following practice is adopted:

Pre-access testing for drugs and alcohol must be conducted within 60 days before the

granting of unescorted access to protected areas or assignment to activities within the scope

of this part, unless the individual:

(a) Has been covered by a program meeting the requirements of this part for at

least 30 days during the 60 days immediately previous to the granting of

unescorted access; and

(b) Has not tested positive for illegal drugs, been subject to a plan for treating

substance abuse, been removed from or made ineligible for activities within the

scope of Part 26, or been denied unescorted access at any other nuclear power

plant or other employment in accordance with a fitness-for-duty policy.
9

The NRC may take enforcement action when a licensee does not follow this practice.

Dated at Rockville, MD, this day of , 2002.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook,

Secretary of the Commission