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History of Fitness-for-Duty Program

The initial Fitness-for-Duty rule (10 CFR Part 26) was published in 1989 (see the table on this page). This rule requires that each nuclear power plant licensee establish a Fitness-for-Duty program. When the initial rule was approved 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, initiatives by the Nuclear Management and Resources Council (NUMARC) (now the Nuclear Energy Institute [NEI]), and the Substance Abuse and Mental Health Services Administration (SAMHSA) (formerly the National Institute on Drug Abuse [NIDA]), and its Drug Testing Advisory Board, and current literature.

A review of FFD program experience and the public comments on proposed amendments confirmed that the regulatory approach included in 10 CFR Part 26 is fundamentally sound and that it continues to provide a means of deterrence and detection of substance abuse at licensee facilities. Nonetheless, the NRC determined that a revision was needed to:

Ensure compatibility with changes to the Department of Health and Human Services (HHS) Mandatory Guidelines for Federal Workplace Drug Testing Programs [published in the Federal Register on April 13, 2004 (69 FR 19643);
Reduce the burden on licensees while fulfilling the rule's purpose;
Clarify requirements promulgated in the original rule to reduce incorrect or inconsistent use and differing interpretations and to make a number of administrative changes;
Modify requirements to ensure compliance with all aspects of the original rule and the clearly stated intent of the Commission when it adopted the original requirements.

The following table identifies for fitness-for-duty programs the history for regulations and other documents and actions affecting these programs.

Type of Document	Description of Content	Effective Date or Federal Register Citation
Documents Related to Fitness for Duty Programs
Regulations (10 CFR Part 26)
Final Rule	Required in 10 CFR Part 26 that each licensee authorized to operate or construct a nuclear power reactor to implement a Fitness-for-Duty Program for all personnel having unescorted access to the protected area of its plant. Implementation began 01/03/1990.	07/07/1989
Final Rule	Final Rule expanding the scope of Part 26 to include licensees authorized to handle Strategic Special Nuclear Materials (SSNM). See the definition of SSNM at 10 CFR 70.4. Revised rule prepared after staff analysis of FFD programs per Commission direction.	11/30/1993
Proposed Rule	The NRC published for public comment proposed amendments that did not include major changes to the rule, but did propose to increase compatibility with the Health and Human Services Mandatory Guidelines; substantially reduce licensees' cost of implementing the rule; enhance overall program integrity, effectiveness, and efficiency; and help to ensure the continued protection of public health and safety.	61 FR 21105 05/09/1996
Commission Papers
Type of Document	Description of Content	Date
SRM	The Commission approved the staff’s recommendation rule (SECY-01-0134). The Commission directed the staff to conduct stakeholder meetings which were done during 2001 and 2002. Additional stakeholder meetings were also conducted in 2004 to address issues raised by stakeholders.	10/03/2001
SECY-Paper	The staff recommended (SECY-01-0134) withdrawing the request for clearance and preparing a new proposed rule.	07/23/2001
Staff Requirements Memorandum (SRM)	On December 4, 2000, the Commission issued an SRM and approved a final rule presented in SECY-00-0159, "Final Rule Amending the Fitness-for-Duty Rule."	12/04/2000
SECY-Paper	The staff submitted a final rule to the Commission (SECY-00-0159).	07/26/2000
SRM	The Commission issued a Staff Requirements Memorandum about the rulemaking plan presented in SECY-00-0022, "Decrease in the Scope of Random Fitness-for-Duty Testing Requirements for Nuclear Power Reactor Licensees."	04/24/2000
SECY-Paper	A rulemaking plan was submitted to the Commission that would require random drug and alcohol testing of only those persons with unescorted access to vital areas. The rulemaking plan would also eliminate random drug and alcohol testing for employees who must physically report to the Technical Support Center or Emergency Operating Facility during an emergency if these facilities were outside of the vital area.	02/01/2000
SECY-Paper	The staff evaluated the current scope of random FFD testing at power reactors, as required by 10 CFR Part 26, and considered the impact of implementing any of four possible alternatives to the current requirements: Define the scope of testing by the category of worker: would exclude certain workers (e.g., clerical, administrative). Define the scope of testing by the type of work: would test all workers who have safety- or security-related jobs. Define the scope of testing by the level of unescorted access: the preferred option, would exclude from random testing all workers with unescorted access only to a protected area and would test only workers who have unescorted access to vital areas. Retain the current testing scope but allow use of alternate testing in lieu of urinalysis for certain groups of workers (e.g., clerical and administrative).	01/24/1994
SRM	Commission directed that the staff consider why it should require random FFD testing of workers who have "no direct safety functions, particularly for clerks, secretaries, or other employees who have unrestricted [unescorted] access to a nuclear plant's protected area, but whose own jobs are not directly safety-related."	08/18/1992
REQUESTS RELATED TO PART 26
From	Description	Date
International Brotherhood of Electrical Workers (IBEW) Union	Exemption request from Part 26 testing for a specific group of clerical workers at Diablo Canyon who have unescorted access to only the protected area, do not have unescorted access to the plant's vital areas and radiologically controlled areas, and are not required to staff the plant's emergency response center.	12/06/1993
IBEW Union Court Request	Filed a request with the U.S. Court of Appeals for the Ninth Circuit that maintenance, warehouse, and clerical workers with unescorted access to the protected area of Diablo Canyon be exempt from random fitness-for-duty (FFD) testing.	02/12/1992
IBEW Union Request	Requested an exemption from 10 CFR Part 26 requirements for members of IBEW local 1245 at Diablo Canyon, based on safety record of Diablo Canyon and the lack of evidence of drug use or alcohol abuse by employees. Subsequently, IBEW withdrew the request to exempt reactor operators from random drug testing.	03/13/1990
NRC ATTORNEY AND COURT ACTION
From	Description	Date
NRC Solicitor	Recommended that the Commission ask the NRC staff to reevaluate the FFD rule, specifically, whether random FFD testing should be required for "clerks, secretaries, or other employees who have unescorted access to a nuclear plant's protected area, but whose own jobs are not directly safety related."	07/20/1992
Court	Denied the IBEW Request, finding that random FFD testing was justified for warehouse and maintenance workers because they enter vital areas--as defined in 10 CFR 73.2, any area that contains vital equipment—and are engaged in safety-related work. However, in its decision, the Court questioned the NRC's requirement for random FFD testing of clerical workers who perform no functions directly related to safety.	06/11/1992