[Federal Register Volume 76, Number 80 (Tuesday, April 26, 2011)]
[Proposed Rules]
[Pages 23208-23218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9925]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 /
Proposed Rules
[[Page 23208]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 26
RIN 3150-AI94
[NRC-2011-0058]
Alternative to Minimum Days Off Requirements
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission)
is proposing to amend its regulations governing the fitness for duty of
workers at nuclear power plants. These amendments would allow holders
of nuclear power plant operating licenses the option to use a different
method from the one currently prescribed in the NRC's regulations for
determining when certain nuclear power plant workers must be afforded
time off from work to ensure that such workers are not impaired due to
cumulative fatigue caused by work schedules.
DATES: Submit comments by May 26, 2011. Comments received after this
date will be considered if it is practical to do so, but the Commission
is able to ensure consideration only for comments received before this
date. Requests for extension of the comment period will not be granted.
ADDRESSES: Please include Docket ID NRC-2011-0058 in the subject line
of your comments. For instructions on submitting comments and accessing
documents related to this action, see ``Submitting Comments and
Accessing Information'' in the SUPPLEMENTARY INFORMATION section of
this document.
You may submit comments by any one of the following methods.
Federal rulemaking Web site: Go to http://www.regulations.gov and search for documents filed under Docket ID NRC-
2011-0058. Address questions about NRC dockets to Carol Gallagher,
telephone: 301-492-3668, e-mail: [email protected].
Mail comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attn: Rulemakings and
Adjudications Staff.
E-mail comments to: [email protected]. If you do
not receive a reply e-mail confirming that we have received your
comments, contact us directly at 301-415-1677.
Hand-deliver comments to: 11555 Rockville Pike, Rockville,
Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays
(telephone: 301-415-1677).
Fax comments to: Secretary, U.S. Nuclear Regulatory
Commission at 301-415-1101.
FOR FURTHER INFORMATION CONTACT: Howard Benowitz, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555;
telephone: 301-415-4060; e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Submitting Comments and Accessing Information
II. Background
A. NRC's Current Regulations
B. Stakeholder Reaction to the Current Fitness for Duty
Requirements
C. Public Meetings and Commission Direction
III. Description of the Proposed Rule
A. Maximum Weekly Average of 54 Hours Worked Over a 6-Week
Rolling Window
B. Proposed Alternative to the Minimum Days Off Requirements
C. Applicability
IV. Section-by-Section Analysis
V. Specific Request for Comment
VI. Availability of Documents
VII. Criminal Penalties
VIII. Compatibility of Agreement State Regulations
IX. Plain Language
X. Voluntary Consensus Standards
XI. Finding of No Significant Environmental Impact
XII. Paperwork Reduction Act Statement
XIII. Regulatory Analysis
XIV. Regulatory Flexibility Certification
XV. Backfit Analysis
I. Submitting Comments and Accessing Information
Comments submitted in writing or in electronic form will be posted
on the NRC Web site and on the Federal rulemaking Web site, http://www.regulations.gov. Because your comments will not be edited to remove
any identifying or contact information, the NRC cautions you against
including any information in your submission that you do not want to be
publicly disclosed. The NRC requests that any party soliciting or
aggregating comments received from other persons for submission to the
NRC inform those persons that the NRC will not edit their comments to
remove any identifying or contact information, and therefore, they
should not include any information in their comments that they do not
want publicly disclosed.
You can access publicly available information related to this
document using the following methods:
NRC's Public Document Room (PDR): The public may examine
and have copied, for a fee, publicly available documents at the NRC's
PDR, Room O-1F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland 20852.
NRC's Agencywide Documents Access and Management System
(ADAMS): Publicly available documents created or received at the NRC
are available electronically at the NRC's Electronic Reading Room at
http://www.nrc.gov/reading-rm/adams.html. From this page, the public
can gain entry into 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's
PDR reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail to
[email protected].
Federal Rulemaking Web Site: Public comments and
supporting materials related to this proposed rulemaking can be found
at http://www.regulations.gov by searching on Docket ID NRC-2011-0058.
II. Background
A. NRC's Current Regulations
On March 31, 2008, the NRC adopted a final rule which substantially
revised its regulations for fitness for duty (FFD) in Title 10 of the
Code of Federal Regulations (10 CFR) part 26 (73 FR 16966; March 31,
2008). The revised regulations updated the NRC's FFD requirements and
made them more consistent with other relevant Federal rules,
guidelines, and drug and alcohol testing programs that impose similar
requirements on the private sector. In addition, by establishing clear
and enforceable requirements for the management of worker fatigue, the
2008
[[Page 23209]]
amendments require nuclear power plant licensees to ensure that worker
fatigue does not adversely affect public health and safety and the
common defense and security. Among these fatigue management
requirements is a minimum days off requirement, which requires
licensees to manage cumulative fatigue by providing workers with a
minimum number of days off over the course of a period not to exceed 6
weeks.
B. Stakeholder Reaction to the Current Fitness for Duty Requirements
On September 3, 2010, the Nuclear Energy Institute (NEI) submitted
a petition for rulemaking (PRM-26-5). In PRM-26-5, the NEI states that
``the new rule has resulted in consequences not originally envisioned
when the rule was developed and that these consequences have diminished
the safety benefits of the rule.'' The NEI states that the unintended
consequences stem from the minimum days off requirements, specifically
Sec. 26.205(d)(3) through Sec. 26.205(d)(6), because they create an
undue level of complexity and inflexibility in managing worker fatigue.
These regulations mandate a specified minimum average number of days
off per week, averaged over a fixed time period. The minimum average
number of days off depends on the duties the individual performs and,
for Sec. 26.205(d)(3), the length of an individual's shift schedule
(i.e., whether the individual is working 8-, 10- or 12-hour shifts).
The NEI requests, among other changes, that 10 CFR part 26, Subpart
I, be amended to replace the minimum days off requirements in Sec.
26.205(d) with a performance-based objective, consisting of an average
of 54 hours worked per week, averaged over a calendar quarter. The NEI
also proposes changing the Sec. 26.205(e)(1) annual assessment of
actual hours worked and performance of individuals subject to the work
hour controls to a quarterly assessment to provide a more frequent
review of hours worked. The NEI proposes to eliminate the minimum days
off requirements in Sec. 26.205(d)(3) through Sec. 26.205(d)(6),
while the work hour limits and break requirements in Sec.
26.205(d)(1)(i)-(iii) and (d)(2)(i)-(ii), respectively, would remain
unchanged.
Separately from PRM-26-5, on September 23, 2010, the NEI submitted
a request for enforcement discretion regarding the minimum days off
provisions of part 26. The request reiterates the NEI's opinion that
the regulations that govern fatigue management impede ``many safety-
beneficial practices at plant sites, adversely [impact] the quality of
life of covered workers, and [result] in conflicts between rule
requirements and represented bargaining unit agreements.'' The letter
requests that the NRC ``exercise enforcement discretion from the
[minimum days off] provisions of the rule'' until the final disposition
of PRM-26-5.
Mr. Erik Erb, a nuclear security officer at the Nine Mile Point
Nuclear Station, submitted a petition for rulemaking (PRM-26-6) on
August 17, 2010. Mr. Erb requests that the NRC amend 10 CFR part 26,
subpart I, to decrease the minimum days off requirement for security
officers working 12-hour shifts from an average of 3 days per week to
an average of 2.5 or 2 days per week. This petition was endorsed by 91
security officers.
C. Public Meetings and Commission Direction
The NRC held a public meeting on November 18, 2010, to learn,
directly from the affected stakeholders, more details about the
unintended consequences of the minimum days off requirements. Although
some of the stakeholders are comfortable with the current minimum days
off requirements, the stakeholders at this public meeting claimed that
the unintended consequences have diminished the safety benefits of the
fatigue management provisions of 10 CFR part 26 and expressed the need
for an alternative that is simpler and would provide greater scheduling
flexibility. Additional public meetings were held on January 6, 2011,
and January 25, 2011, to provide opportunities for stakeholders and the
NRC to discuss alternatives to the minimum days off requirements.
In a February 8, 2011, public meeting, the NRC staff and
stakeholders briefed the Commission on the implementation of the 10 CFR
part 26 fatigue management requirements. The nuclear power industry
stakeholders conveyed many of the same concerns raised in the three
public meetings. The NRC staff presented the scientific and technical
bases for the current requirements for managing cumulative fatigue and
a proposal to address the concerns raised by the industry stakeholders.
The NRC staff proposed a maximum average 54-hour work week, averaged
over a 6-week rolling period, as an alternative to the Sec.
26.205(d)(3) minimum days off requirements. The NRC staff and industry
stakeholders generally agreed that this proposal could provide the
relief sought by the industry while meeting the objectives of the
minimum days off requirements. Other stakeholders were less certain
that the NRC should consider proposals to change the current
requirements.
On March 24, 2011, the Commission issued a Staff Requirements
Memorandum that directed the NRC staff to conduct a rulemaking to
provide an alternative to the minimum days off requirements that would
be consistent with the proposal presented by the NRC staff at the
February 8, 2011, briefing. The Commission limited the scope of the
rulemaking to the alternative to the minimum days off requirements and
instructed the NRC staff to consider other issues related to the
petitions for rulemaking, other changes to 10 CFR part 26, and comments
received in this rulemaking proceeding that are outside the limited
scope of this rulemaking, in a separate rulemaking effort. The
Commission also directed the staff to expedite this rulemaking and
provide a 30-day public comment period for this proposed rule instead
of the typical 75-day public comment period.
III. Description of the Proposed Rule
A. Maximum Weekly Average of 54 Hours Worked Over a 6-Week Rolling
Window
One cause of cumulative fatigue is consecutive days of restricted
or poor quality sleep. In turn, consecutive days of restricted or poor
quality sleep may be caused by such things as shift-work, extended work
days, and extended work weeks. Currently, Subpart I of 10 CFR part 26
requires nuclear power plant licensees to manage cumulative fatigue
primarily by providing individuals with a minimum number of days off
over the course of a period not to exceed 6 weeks. The distribution of
the days off during the 6-week period acts to either prevent or
mitigate cumulative fatigue.
An alternative method for managing cumulative fatigue would be to
establish a requirement to limit actual hours worked instead of
mandating the number of days off that individuals receive. A limit on
actual hours worked, when applied to schedules that require regular
shift coverage, would limit the number of work hours that can
contribute to cumulative fatigue and, as a practical matter, result in
periodic days off for recovery rest. A schedule resulting in a weekly
average of 54 hours worked, calculated using a rolling period of up to
6 weeks, would be such a schedule.
In general, most individuals that work their normal shift schedule
and receive only the minimum number of days off required under the
current minimum days off requirements of Sec. 26.205(d)(3) could
average as many as 54 hours of
[[Page 23210]]
work per week. However, the NEI has indicated that implementation of
the minimum days off requirements has reduced licensee scheduling
flexibility and imposed a substantial administrative burden. By
comparison, limiting work hours to an average of not more than 54 hours
per week by using a rolling window (i.e., averaging period) of up to 6
weeks would limit the number of consecutive weeks of extended work
hours that an individual can work by using a comparable but simpler and
more flexible requirement. The 6 week limit would also remain
consistent with the averaging duration and technical basis of the
minimum days off requirements, as described in the Statement of
Considerations (SOC) for the 2008 10 CFR part 26 final rule. In
addition, this alternative would not depend on the length of an
individual's shift schedule and would eliminate the burden of tracking
the number of days off that an individual receives in a period not to
exceed 6 weeks. Based on stakeholder input, the alternative would
relieve operational burdens by enabling licensee personnel to engage in
certain safety-beneficial practices with fewer scheduling restrictions,
such as holding off-shift shift manager meetings and using the most
knowledgeable workers in responding to plant events and conditions.
In summary, the maximum number of hours that could be worked under
the proposed alternative approach would be comparable to the maximum
number of hours that can be worked by most individuals under the
current 10 CFR part 26 minimum days off requirements, except that the
alternative requirement would provide for greater simplicity and
flexibility. This proposed approach could be used only in place of the
minimum days off requirements in Sec. 26.205(d)(3) and would be
applicable only to individuals subject to work hour controls under
Sec. 26.205(a). Under Sec. 26.205(a), the subject individuals are
those described in Sec. 26.4(a). The NRC determination that the
proposed alternative would be equivalent to the minimum days off
requirements considered the collective advantages and disadvantages of
having all individuals who are subject to the work hour controls under
a single set of cumulative fatigue management requirements. Thus,
licensees would not be able to subject one group of individuals under
Sec. 26.4(a) to the requirements in Sec. 26.205(d)(3) and another
group of individuals under Sec. 26.4(a) to proposed Sec. 26.205(d)(7)
requirements. Allowing licensees to implement the minimum days off and
proposed alternative requirements simultaneously would also create a
burden for NRC oversight and inspections.
Although the rolling schedule required under the proposed
alternative approach would limit the number of consecutive extended
work weeks and thereby limit the potential for cumulative fatigue,
there are unusual potential circumstances in which the proposed
alternative requirement could be met and the schedule could be
fatiguing. Such schedules include having only one in every nine days
off or consistently working the maximum allowable hours, which would
likely result in cumulative fatigue. However, the industry has stated
that these unusual schedules are improbable. The NRC believes that this
proposed alternative approach, together with other aspects of the rule
that will remain unchanged, would provide reasonable assurance that
licensees will manage cumulative fatigue in a manner that contributes
to the protection of public health and safety and common defense and
security.
B. Proposed Alternative to the Minimum Days Off Requirements
The NRC proposes to create a new Sec. 26.205(d)(7) that would
contain the proposed alternative. The proposed rule would allow nuclear
power plant licensees and other entities identified in Sec. 26.3(a)
and, if applicable, (c) and (d) to choose whether or not to implement
this alternative approach, in lieu of compliance with the current
rule's minimum days off requirements in Sec. 26.205(d)(3). The NRC is
not proposing to remove the current Sec. 26.205(d)(3) minimum days off
requirements and mandate that all licensees instead adopt new maximum
average work hour requirements. Some licensees may be satisfied with
the current requirements. In addition, a mandated change would
constitute backfitting under the NRC's Backfit Rule, 10 CFR 50.109.
None of the exceptions in Sec. 50.109(a)(4) to preparation of a
backfit analysis could be justified, and a backfit analysis could not
demonstrate that a mandatory rule would constitute a cost-justified
substantial increase in protection to public health and safety or
common defense and security. For these reasons, the NRC has decided to
propose the maximum weekly average of 54 work hours, averaged over a
rolling window of up to 6 weeks, as an alternative to the minimum days
off requirements.
C. Applicability
Consistent with the current rule's minimum days off requirements in
Sec. 26.205(d)(3), the proposed alternative maximum average work hours
provisions would apply to all periods of operations, with several
specified exceptions: during force-on-force exercises and plant
emergencies and for security personnel when they are needed to maintain
the common defense and security. In those limited circumstances,
special provisions, described below, would apply. In addition,
licensees currently have the option under Sec. 26.205(d)(4) to comply
with the minimum days off requirements in either Sec. 26.205(d)(3) or
Sec. 26.205(d)(4) during unit outages when the affected individuals
are working on outage activities, and have the option under Sec.
26.205(d)(5) to comply with the minimum days off requirements in either
Sec. 26.205(d)(3) or Sec. 26.205(d)(5) during unit outages, security
system outages, or increased threat conditions. Under the proposed
rule, licensees also would have the option to comply with the maximum
average work hours requirements under the above conditions. The reasons
that the Commission permits the exceptions and options involving the
minimum days off requirements are explained in the SOC for the 2008 10
CFR part 26 final rule. Because the proposed optional approach would
offer licensees an equivalent minimum days off alternative that is
equally effective at managing cumulative fatigue, the 2008 10 CFR part
26 final rule SOC also provides the justification for why the proposed
alternative would apply to the exceptions and options described herein.
The current rule, in Sec. 26.205(d)(4), offers licensees the
option to apply different minimum days off requirements during the
first 60 days of a unit outage for individuals working on outage
activities. During this part of outages, licensees are not required to
calculate the requisite number of an individual's days off by a weekly
average over a period of up to 6 weeks. The regulation requires
licensees who choose the outage option to provide affected individuals
with a fixed number of days off over a 15-day period or 7-day period,
depending on the duties performed by the individuals. Similarly, the
cumulative fatigue management provisions for security personnel in
current Sec. 26.205(d)(5)(i) allow licensees, during the first 60 days
of a unit outage or a planned security system outage, the option to
comply with the minimum days off
[[Page 23211]]
requirements in Sec. 26.205(d)(3) or provide security personnel with a
fixed number of days off over a 15-day period. Under proposed Sec.
26.205(d)(4) and (d)(5)(i), licensees that choose the alternative
maximum average work hours approach during non-outage periods would
have the option to use the proposed alternative or the fixed number of
days off approaches during the first 60 days of outages.
During the first 60 days of an unplanned security system outage or
increased threat condition, current Sec. 26.205(d)(5)(ii) provides a
discretionary exception from the minimum days off requirement in Sec.
26.205(d)(3) and (d)(5)(i) so that security personnel subject to the
work hour requirements would not be required to meet the minimum days
off requirements. The proposed Sec. 26.205(d)(5)(ii) would permit
licensees who implement the maximum average work hours approach during
non-outage periods to not meet the proposed Sec. 26.205(d)(7)
requirements during the first 60 days of an unplanned security system
outage or increased threat condition.
Section 26.207(b) of the current regulations relieves licensees
from the minimum days off requirements of Sec. 26.205(d)(3) by
allowing licensees to exclude shifts worked by security personnel
during the actual conduct of NRC-evaluated force-on-force tactical
exercises when calculating the individuals' required number of days
off. The proposed rule would permit licensees who implement the
proposed alternative during non-outage periods to exclude from the
proposed Sec. 26.205(d)(7) calculations the hours worked by security
personnel during the actual conduct of NRC-evaluated force-on-force
tactical exercises.
Current Sec. 26.207(c) provides a licensee relief from the work
hour control requirements of Sec. 26.205 for security personnel upon
written notification from the NRC, for the purpose of assuring the
common defense and security for a period the NRC defines. In the
proposed rule, licensees would also be relieved from the requirements
of proposed Sec. 26.205(d)(7) in this situation.
As stated in current Sec. 26.207(d), a licensee need not meet the
work hour controls, including the minimum days off requirements, during
declared emergencies, as defined in the licensee's emergency plan.
Under the proposed rule, consistent with the current approach for
minimum days off requirements during declared emergencies, licensees
would not need to meet the requirements of the proposed Sec.
26.205(d)(7) during the period of the declared emergency.
The NRC Office of Enforcement issued EGM-09-008, ``Enforcement
Guidance Memorandum--Dispositioning Violations of NRC Requirements for
Work Hour Controls Before and Immediately After a Hurricane Emergency
Declaration,'' dated September 24, 2009, to give the NRC staff guidance
for processing violations of work hour controls requirements during
conditions before and immediately after the declaration of an emergency
for a hurricane, when licensees sequester plant staff on site to ensure
personnel are available for relief of duties, and potentially granting
enforcement discretion for the affected requirements. Under EGM-09-008,
the NRC may exercise enforcement discretion and not cite licensees for
violations of 10 CFR 26.205(c) and (d) while a licensee sequesters site
personnel in preparation for hurricane conditions that are expected to
result in the declaration of an emergency caused by high winds. The EGM
refers to Sec. 26.205(d) generally, and therefore, the requirements in
proposed Sec. 26.205(d)(7) would also fall under the enforcement
discretion described by EGM-09-008.
IV. Section-by-Section Analysis
10 CFR 26.203 General Provisions.
Section 26.203 establishes requirements for licensees' fatigue
management policies, procedures, training, examinations, recordkeeping,
and reporting. The NRC proposes to make conforming changes to
paragraphs within Sec. 26.203 to ensure consistency between the
implementation of the minimum days off requirements in Sec.
26.205(d)(3) and the implementation of the maximum average work hours
requirements in proposed Sec. 26.205(d)(7).
Section 26.203(d)(2)
Section 26.203(d)(2) currently requires licensees to retain records
of shift schedules and shift cycles of individuals who are subject to
the work hour requirements established in Sec. 26.205. These records
are necessary, in part, to ensure that documentation of the licensee's
fatigue management program is retained and available for the NRC
inspectors to verify that licensees are complying with the work hour
requirements and waiver and fatigue assessment provisions. Because
licensees that implement the alternative would need to show inspectors
that individuals subject to the new work hour controls have not
exceeded the average weekly work hour limit, inspectors would need to
know the averaging periods used by the licensee. Therefore, the NRC
proposes to amend Sec. 26.203(d)(2) to include the requirement that
licensees implementing the requirements in proposed Sec. 26.205(d)(7)
maintain records showing the beginning and end times and dates of all
6-week or shorter averaging periods. These licensees would also need to
retain records of shift schedules to ensure compliance with the
requirements in Sec. 26.205(c) and Sec. 26.205(d)(2).
Section 26.203(e)(1)
Current Sec. 26.203(e)(1) requires licensees to provide the NRC
with an annual summary of all instances during the previous calendar
year in which the licensee waived each of the work hour controls
specified in Sec. 26.205(d)(1) through (d)(5)(i) for individuals who
perform the duties listed in Sec. 26.4(a)(1) through (a)(5). Section
26.203(e)(1) would be revised in the proposed rule to require licensees
to also report the instances when the licensee waived the requirements
in proposed Sec. 26.205(d)(7).
Section 26.203(e)(1)(i) and (e)(1)(ii)
Section 26.203(e)(1)(i) and (e)(1)(ii) requires licensees to report
whether work hour controls are waived for individuals working on normal
plant operations or working on outage activities. The proposed rule
would require licensees to include whether the alternative requirements
in proposed Sec. 26.205(d)(7) were waived during normal plant
operations or while working on outage activities.
10 CFR 26.205 Work hours.
Section 26.205 sets forth the NRC's requirements governing work
hour controls applicable to individuals performing the duties in 10 CFR
26.4(a)(1) through (a)(5). The NRC proposes to add a new Sec.
26.205(d)(7) and make conforming changes to existing paragraphs within
Sec. 26.205 to ensure consistency between the implementation of the
minimum days off requirements in Sec. 26.205(d)(3) and the
implementation of the maximum average work hours requirements in
proposed Sec. 26.205(d)(7).
Section 26.205(b)(5)
Section 26.205(b)(5) currently allows licensees to exclude from the
calculation of an individual's work hours unscheduled work performed
off site (e.g., technical assistance provided by telephone from an
individual's home), provided the total duration of the work does not
exceed a nominal 30 minutes during any single break period. For the
purposes of compliance with the
[[Page 23212]]
minimum break requirements of Sec. 26.205(d)(2) and the minimum days
off requirements of Sec. 26.205(d)(3) through (d)(5), such duties do
not constitute work periods or work shifts. The proposed rule would
revise Sec. 26.205(b)(5) to exclude these incidental duties from hours
worked under proposed Sec. 26.205(d)(7).
Section 26.205(d)(3)
Currently, Sec. 26.205(d)(3) requires licensees to ensure that
subject individuals have, at minimum, the days off as specified in this
section. Under the proposed rule, licensees would have the option of
either complying with the minimum days off requirements in Sec.
26.205(d)(3) or the alternative requirements in proposed Sec.
26.205(d)(7).
Section 26.205(d)(4)
Current Sec. 26.205(d)(4) provides a limited discretionary
exception from the minimum day off requirements in Sec. 26.205(d)(3)
for individuals performing the duties specified in Sec. 26.4(a)(1)
through (a)(4) (i.e., certain operations, chemistry, health physics,
fire brigade, and maintenance activities). The exception from the
minimum days off requirements is available during the first 60 days of
a unit outage while a subject individual is working on outage
activities. In these circumstances, if the licensee elects to apply the
exception, Sec. 26.205(d)(4) requires licensees to ensure that
individuals specified in Sec. 26.4(a)(1) through (a)(3) have a minimum
of 3 days off in each successive (i.e., non-rolling) 15-day period and
that individuals specified in Sec. 26.4(a)(4) have at least 1 day off
in any 7-day period. Detailed guidance on the applicability of this
rule provision is available in Regulatory Guide 5.73, ``Fatigue
Management for Nuclear Power Plant Personnel.'' After the first 60 days
of a unit outage, regardless of whether the individual is working on
unit outage activities, the individual is again subject to the minimum
days off requirements of Sec. 26.205(d)(3), except as permitted by
Sec. 26.205(d)(6). The NRC proposes to revise Sec. 26.205(d)(4) to
allow licensees that choose the maximum average work hours alternative
during non-outage periods to have the option to use the proposed
alternative or the fixed number of days off approach during the first
60 days of a unit outage.
Section 26.205(d)(5)(i)
Section 26.205(d)(5)(i) currently provides a discretionary
exception from the minimum days off requirements of Sec. 26.205(d)(3)
for personnel performing the duties described in Sec. 26.4(a)(5)
during unit outages or unplanned security system outages. The
requirement limits this exception period to 60 days from the beginning
of the outage and requires that individuals performing the security
duties identified in Sec. 26.4(a)(5) during this period have a minimum
of 4 days off in each non-rolling 15-day period. Proposed Sec.
26.205(d)(5)(i) would allow licensees that choose the maximum average
work hours alternative during non-outage periods to have the option to
use the proposed alternative or the fixed number of days off approach
in Sec. 26.205(d)(5)(i) for security personnel during the first 60
days of a unit outage or unplanned security system outage.
Section 26.205(d)(5)(ii)
Current Sec. 26.205(d)(5)(ii) provides a discretionary exception
from the minimum days off requirements of Sec. 26.205(d)(3) for
security personnel during the first 60 days of an unplanned security
system outage or an increased threat condition. Individuals performing
the security duties identified in Sec. 26.4(a)(5) during this period
do not have to meet the minimum days off requirements of Sec.
26.205(d)(3). Proposed Sec. 26.205(d)(5)(ii) would provide that,
during the first 60 days of an unplanned security system outage or an
increased threat condition, licensees would not need to meet the
requirements of Sec. 26.205(d)(3), Sec. 26.205(d)(5)(i), or proposed
Sec. 26.205(d)(7) for security personnel.
Section 26.205(d)(7)
This would be a new section governing maximum average work hours
for subject individuals, with which licensees could voluntarily choose
to comply as an alternative to complying with comparable provisions in
Sec. 26.205(d)(3). Licensees who choose to comply with this
alternative would nonetheless comply with all requirements in Sec.
26.205 other than the minimum days off requirements in Sec.
26.205(d)(3).
The individuals subject to the proposed maximum average work hours
requirements in this section would be the same as the individuals
subject to the comparable controls in Sec. 26.205(d)(3), which,
according to Sec. 26.205(a), are the individuals described in Sec.
26.4(a). Unlike the minimum days off requirements, the proposed maximum
average work hours alternative would apply to all individuals described
in Sec. 26.205(a) without regard for their assigned duties or the
length of their shift schedules.
Section 26.205(d)(7)(i)
Licensees who elect to implement the requirements of proposed Sec.
26.205(d)(7)(i) would manage affected individuals' cumulative fatigue
by limiting the number of hours they work each week to an average of 54
hours. The 54-hour average would be computed over a rolling period of
up to 6 weeks. Licensees would roll (i.e., adjust forward) the
beginning and end times and dates of their averaging periods (of up to
6 weeks) by no more than 7 consecutive calendar days at any time.
Licensees would be expected to describe in their FFD procedures, as
required by proposed Sec. 26.205(d)(7)(ii), the beginning and end
times and days of the week for the averaging periods.
Section 26.205(d)(7)(ii)
In proposed Sec. 26.205(d)(7)(ii), each licensee would need to
explicitly state, in its FFD policies and procedures required by 10 CFR
26.27 and 10 CFR 26.203, with which requirements it is complying: The
minimum days off provisions in Sec. 26.205(d)(3) or the maximum
average work hours requirements in proposed Sec. 26.205(d)(7). As a
general matter, good regulatory practice requires each licensee to
clearly document its licensing basis, especially where the NRC's
requirements offer the licensee one or more regulatory alternatives. If
a licensee clearly and sufficiently documents its licensing basis, then
the licensee can more easily determine, despite changes (as applicable)
in personnel, procedures, or its design, whether the licensee continues
to comply with its licensing basis and applicable NRC requirements.
Effective documentation also allows the NRC to quickly and accurately
determine the licensee's status of compliance and affords the public an
opportunity to understand the legal constraints to which that licensee
is subject.
Arguably, the NRC's regulations would already require the licensee
to document its decision to comply with the alternative to the minimum
days off requirements in proposed Sec. 26.205(d)(7). Section 26.27
requires licensees to establish written FFD policies and procedures,
and 10 CFR 26.203(a) and (b) requires licensees to include in the Sec.
26.27 written policies and procedures the specific policies and
procedures for the management of fatigue, including the process for
implementing the work hour controls in Sec. 26.205. However, to avoid
ambiguity on this matter, the NRC would make clear in Sec.
26.205(d)(7)(ii) the licensee's (and applicant's) regulatory obligation
to document in its
[[Page 23213]]
FFD policies and procedures, required by Sec. 26.27 and Sec.
26.203(a) and (b), including the process for implementing the work hour
controls, with which requirements it will comply: The requirements in
Sec. 26.205(d)(3) or proposed Sec. 26.205(d)(7).
The cumulative fatigue management requirements with which each
licensee elects to comply, either the requirements in Sec.
26.205(d)(3) or proposed Sec. 26.205(d)(7), would be the legally-
binding requirements for that licensee for all individuals subject to
the work hour controls of Sec. 26.205. For example, licensees would
not be able to subject one group of individuals under Sec. 26.4(a) to
the requirements in Sec. 26.205(d)(3) and another group of individuals
under Sec. 26.4(a) to proposed Sec. 26.205(d)(7) requirements.
Implementing the minimum days off and proposed alternative requirements
simultaneously would create a burden for NRC inspectors because before
they could even begin their inspection review, the inspectors would
have to ascertain which groups of individuals were subject to which set
of requirements. The review itself would then be more burdensome
because the review would include additional steps depending on the
applicable individuals and requirements. In addition, the NRC assessed
the proposed alternative as equivalent to the minimum days off
requirements considering the collective advantages and disadvantages of
having all individuals who are subject to the work hour controls under
a single set of cumulative fatigue management requirements.
Nevertheless, licensees would be free to switch to the other set of
legally-binding requirements, so long as the requirement of proposed
Sec. 26.205(d)(7)(ii) was met.
Section 26.205(e)(1)(i)
Currently, Sec. 26.205(e)(1) requires licensees to review the
actual work hours and performance of individuals who are subject to
this section for consistency with the requirements of Sec. 26.205(c),
so that licensees can determine if they are controlling the work hours
of individuals consistent with the objective of preventing impairment
from fatigue due to the duration, frequency, or sequencing of
successive shifts. Section 26.205(e)(1)(i) requires the licensees to
assess the actual work hours and performance of individuals whose
actual hours worked during the review period exceeded an average of 54
hours per week in any shift cycle while the individuals' work hours are
subject to the requirements of Sec. 26.205(d)(3). The NRC proposes to
amend Sec. 26.205(e)(1)(i) to require licensees to assess the actual
work hours and performance of individuals whose actual hours worked
during the review period exceeded an average of 54 hours per week in
any averaging period of up to 6 weeks. The duration of the averaging
periods would be the same duration that the licensees use to control
the individuals' work hours to comply with the requirements of proposed
Sec. 26.205(d)(7).
10 CFR 26.207 Waivers and Exceptions
Section 26.207 provides the criteria that licensees must meet to
authorize waivers and enact exceptions from the work hour requirements
in Sec. 26.205(d)(1) through (d)(5)(i). The NRC proposes to make
conforming changes to paragraphs within Sec. 26.207 to ensure
consistency between the implementation of the minimum days off
requirements in Sec. 26.205(d)(3) and the implementation of the
maximum average hours worked requirements in proposed Sec.
26.205(d)(7).
Section 26.207(a)
Section 26.207(a) permits licensees to authorize waivers from the
work hour requirements in Sec. 26.205(d)(1) through (d)(5)(i) for
conditions that meet the two criteria specified in Sec. 26.207(a).
Section 26.207(a) would be revised in the proposed rule to authorize
licensees to grant waivers from the work hour requirements in proposed
Sec. 26.205(d)(7) if the criteria in Sec. 26.207(a) are met.
Section 26.207(b)
Current Sec. 26.207(b) relieves licensees from the minimum days
off requirements of Sec. 26.205(d)(3) by allowing them to exclude
shifts worked by security personnel during the actual conduct of NRC-
evaluated force-on-force tactical exercises when calculating the
individual's number of days off. The proposed rule would amend Sec.
26.207(b) to permit licensees to exclude from the maximum average work
hours requirements of proposed Sec. 26.205(d)(7) the hours worked by
security personnel during the actual conduct of NRC-evaluated force-on-
force tactical exercises.
10 CFR 26.209 Self-Declarations
Section 26.209 requires licensees to take immediate action in
response to a self-declaration by an individual who is working under,
or being considered for, a waiver from the work hour controls in Sec.
26.205(d)(1) through (d)(5)(i). The NRC proposes to make a conforming
change to Sec. 26.209(a) to ensure consistency between the
implementation of the minimum days off requirements in Sec.
26.205(d)(3) and the implementation of the maximum average hours worked
requirements in proposed Sec. 26.205(d)(7).
Section 26.209(a)
Section 26.209(a) would be amended in the proposed rule to address
the situation when an individual is performing, or being assessed for,
work under a waiver of the requirements contained in proposed Sec.
26.205(d)(7) and declares that, due to fatigue, he or she is unable to
safely and competently perform his or her duties. As in the current
Sec. 26.209(a), the licensee shall immediately stop the individual
from performing any duties listed in Sec. 26.4(a), except if the
individual is required to continue performing those duties under other
requirements in 10 CFR part 26. If the subject individual must continue
performing the duties listed in Sec. 26.4(a) until relieved, then the
licensee shall immediately take action to relieve the individual.
10 CFR 26.211 Fatigue Assessments
Section 26.211 currently requires licensees to conduct fatigue
assessments under several conditions. The NRC proposes to make
conforming changes to paragraphs within Sec. 26.211 to ensure
consistency between the implementation of the minimum days off
requirements in Sec. 26.205(d)(3) and the implementation of the
maximum average hours worked requirements in proposed Sec.
26.205(d)(7).
Section 26.211(b)(2)(iii)
Section 26.211(b)(2)(iii) prohibits individuals from performing a
post-event fatigue assessment if they evaluated or approved a waiver of
the limits specified in Sec. 26.205(d)(1) through (d)(5)(i) for any of
the individuals who were performing or directing the work activities
during which the event occurred if the event occurred while such
individuals were performing work under that waiver. The proposed rule
would amend Sec. 26.211(b)(2)(iii) to prohibit individuals from
performing a post-event fatigue assessment if they evaluated or
approved a waiver of the limits specified in proposed Sec.
26.205(d)(7) for any of the individuals who were performing or
directing the work activities during which the event occurred if the
event occurred while such individuals were performing work under that
waiver.
Section 26.211(d)
Current Sec. 26.211(d) prohibits licensees from concluding that
fatigue has not degraded or will not degrade the individual's ability
to safely and
[[Page 23214]]
competently perform his or her duties solely on the basis that the
individual's work hours have not exceeded any of the limits specified
in Sec. 26.205(d)(1) or that the individual has had the minimum rest
breaks required in Sec. 26.205(d)(2) or the minimum days off required
in Sec. 26.205(d)(3) through (d)(5). The NRC proposes to amend Sec.
26.211(d) to include the maximum average work hours among the criteria
that licensees may not solely rely on when concluding that fatigue has
not degraded or will not degrade an individual's ability to safely and
competently perform his or her duties.
V. Specific Request for Comment
The NRC is seeking advice and recommendations from the public on
this proposed rule. The NRC will consider all comments received within
the limited scope of this proposed rulemaking and address them in the
final rule. We are particularly interested in comments and supporting
rationale from the public on the following issue: Would the alternative
approach provide comparable assurance of the management of cumulative
fatigue as the current minimum days off requirements?
VI. Availability of Documents
The following table lists documents that are related to this
proposed rule and available to the public and indicates how they may be
obtained. See Submitting Comments and Accessing Information of the
SUPPLEMENTARY INFORMATION section on the physical locations and Web
sites where the documents may be accessed.
----------------------------------------------------------------------------------------------------------------
Electronic Reading Room
Document PDR Web (Adams)
----------------------------------------------------------------------------------------------------------------
U.S. Nuclear Regulatory Commission, X ............................ ML083450028
Regulatory Guide 5.73, ``Fatigue
Management For Nuclear Power Plant
Personnel'' (March 2009).
PRM-26-5, Petition to Amend 10 CFR part X Docket ID. NRC-2010-0304.... ML102590440
26, ``Fitness-for-Duty Programs,'' filed
by the Nuclear Energy Institute
(September 3, 2010).
Anthony R. Pietrangelo on Behalf of the ....... Docket ID. NRC-2010-0304....
Nuclear Energy Institute; Notice of
Receipt of Petition for Rulemaking, 75
FR 65249 (October 22, 2010).
Request for Enforcement Discretion filed X ............................ ML102710208
by the Nuclear Energy Institute
(September 23, 2010).
PRM-26-6, Petition to Amend 10 CFR part X Docket ID. NRC-2010-0310.... ML102630127
26, filed by Eric Erb (August 17, 2010).
Eric Erb; Notice of Receipt of Petition ....... Docket ID. NRC-2010-0310....
for Rulemaking, 75 FR 71368 (November
23, 2010).
SECY-11-0003, Status of Enforcement X ............................ ML103420201
Discretion Request and Rulemaking
Activities Related to 10 CFR part 26,
Subpart I, ``Managing Fatigue'' (January
4, 2011).
SECY-11-0028, Options for Implementing an X ............................ ML110390077
Alternative Interim Regulatory Approach
to the Minimum Days Off Provisions of 10
CFR part 26, Subpart I, ``Managing
Fatigue'' (February 28, 2011).
EGM-09-008, ``Enforcement Guidance X ............................ ML092380177
Memorandum--Dispositioning Violations of
NRC Requirements for Work Hour Controls
Before and Immediately After a Hurricane
Emergency Declaration'' (September 24,
2009).
Staff Requirements--SECY-11-0003--Status X ............................ ML110830971
of Enforcement Discretion Request and
Rulemaking Activities Related to 10 CFR
part 26, Subpart I, ``Managing Fatigue''
and SECY-11-0028--Options for
Implementing an Alternative Interim
Regulatory Approach to the Minimum Days
Off Provisions of 10 CFR part 26,
Subpart I, ``Managing Fatigue'' (March
24, 2011).
Updated Notice of Public Meeting to X ............................ ML103160388
Discuss part 26, Subpart I
Implementation to Understand Unintended
Consequences of the Minimum Day Off
Requirements (November 15, 2010).
Summary of November 18, 2010, Public X ............................ ML103430557
Meeting to Discuss part 26, Subpart I
Implementation to Understand Unintended
Consequences of the Minimum Day Off
Requirements (December 13, 2010).
Update--Notice of Public Meeting X ............................ ML103550089
Regarding part 26, Subpart I Minimum
Days Off Requirements and Options
Licensees May Implement to Receive
Enforcement Discretion From These
Requirements (December 30, 2010).
Summary of January 6, 2011, Public X ............................ ML110280446
Meeting Regarding part 26, Subpart I
Minimum Days Off Requirements and
Options Licensees May Implement to
Receive Enforcement Discretion from
these Requirements (February 3, 2011).
Notice of Public Meeting to Discuss X ............................ ML110140315
Alternatives to the part 26, Subpart I,
Minimum Days Off Requirements (January
14, 2011).
Summary of January 25, 2011, Public X ............................ ML110340512
Meeting to Discuss Alternatives to the
part 26, Subpart I, Minimum Days Off
Requirements.
Sunshine Federal Register Notice of X ............................ ML110200295
February 8, 2011, Commission Briefing on
the Implementation of part 26, 76 FR
5626 (February 1, 2011).
Transcript of February 8, 2011, X ............................ ML110410169
Commission Briefing on the
Implementation of part 26.
----------------------------------------------------------------------------------------------------------------
VII. Criminal Penalties
For the purposes of Section 223 of the Atomic Energy Act (AEA), as
amended, the NRC is issuing this proposed rule that would amend 10 CFR
part 26 under one or more of Sections 161b, 161i, or 161o of the AEA.
Willful violations of the rule would be subject to criminal
enforcement. Criminal penalties as they apply to regulations in 10 CFR
part 26 are discussed in Sec. 26.825.
[[Page 23215]]
VIII. Compatibility of Agreement State Regulations
Under the ``Policy Statement on Adequacy and Compatibility of
Agreement State Programs,'' approved by the Commission on June 20,
1997, and published in the Federal Register on September 3, 1997 (62 FR
46517), this proposed rule is classified as compatibility ``NRC.''
Compatibility is not required for Category ``NRC'' regulations. The NRC
program elements in this category are those that relate directly to
areas of regulation reserved to the NRC by the AEA or the provisions of
10 CFR, and although an Agreement State may not adopt program elements
reserved to the NRC, it may wish to inform its licensees of certain
requirements via a mechanism that is consistent with a particular
State's administrative procedure laws but does not confer regulatory
authority on the State.
IX. Plain Language
The Plain Writing Act of 2010 (Pub. L. 11 1-274) requires Federal
agencies to write documents in a clear, concise, well-organized manner
that also follows other best practices appropriate to the subject or
field and the intended audience. Although regulations are exempt under
the Act, the NRC is applying the same principles to its rulemaking
documents. Therefore, the NRC has written this document, including the
proposed amended and new rule language, to be consistent with the Plain
Writing Act. In addition, where existing rule language must be changed,
the NRC has rewritten that language to improve its organization and
readability. The NRC requests comment on the proposed rule specifically
with respect to the clarity and effectiveness of the language used.
Comments should be sent to the NRC as explained in the ADDRESSES
caption of this document.
X. Voluntary Consensus Standards
The NRC proposes using this standard instead of the following
voluntary consensus standard developed by the American Nuclear Society
(ANS): American National Standards Institute (ANSI)/ANS-3.2-1988. The
NRC has determined that using a Government-unique standard would be
justified. The NRC declined to use the ANS standard when the fatigue
management provisions in Subpart I of 10 CFR part 26 were adopted in
2008. (73 FR 16966; March 31, 2008, at 17170 (second and third
column)). The alternative for managing cumulative fatigue through a
maximum average work hours requirement in this proposed rule has no
counterpart in ANSI/ANS-3.2-1988 that could be adopted to manage
cumulative fatigue, and the NRC declines to reconsider its overall
decision in the 2008 rulemaking not to adopt the fatigue management
approach embodied in the ANS standard. Accordingly, the NRC concludes
that there are no voluntary consensus standards that could be adopted
in lieu of the proposal to adopt the Government-unique standard in this
proposed rule.
XI. Finding of No Significant Environmental Impact
The Commission has determined under the National Environmental
Policy Act of 1969, as amended, and the Commission's regulations in
Subpart A of 10 CFR part 51, that this proposed rule, if adopted, would
not be a major Federal action significantly affecting the quality of
the human environment and, therefore, an environmental impact statement
is not required. This proposed rule would allow licensees of nuclear
power reactors to voluntarily use a different method from the one
currently prescribed in the NRC's regulations for determining whether
certain nuclear power plant workers must be afforded time off from
work.
The NRC has determined that the alternative for determining time
off would not significantly alter the likelihood that there will be an
increase in fatigued workers causing operational problems or a
radiological event, or being unable to properly perform their
functions. The alternative would provide affected licensees with a
more-easily implemented approach for determining when subject
individuals must be afforded the time off. The NRC recognizes that
there are unusual potential circumstances in which the proposed
alternative requirement could be met and the schedule could be
fatiguing. Such schedules include having only one in every nine days
off or consistently working the maximum allowable hours, which would
likely result in cumulative fatigue. However, the industry has stated
that these unusual schedules are improbable. The NRC believes that this
proposed alternative approach, together with other aspects of the rule
that will remain unchanged, would provide reasonable assurance that
licensees will manage cumulative fatigue in a manner that contributes
to the protection of public health and safety and common defense and
security. In addition, the proposed alternative is expected to reduce
scheduling constraints on certain safety-beneficial practices. Because
the NRC's regulatory objective would continue to be met under the
alternative adopted in this proposed rule, there should be no change in
environmental impacts, during operation or while the nuclear power
plant is in shutdown, as compared with the environmental impact of the
current rule.
The primary alternative to this action would be the no-action
alternative. The no-action alternative could result in a greater
administrative burden on nuclear power plant licensees in complying
with the minimum days off requirements in the current rule, as compared
with the alternative to the minimum days off requirements under the
proposed rule. In addition, individuals subject to minimum days off
requirements could personally believe that their quality of life and
work conditions are less under the no-action alternative, as compared
with the alternative maximum average work hours requirements that could
be selected under the proposed rule.
The no-action alternative would provide little or no environmental
benefit. In addition, the no-action alternative has led nuclear power
plant licensees to use work scheduling approaches that, for example,
reduce their capability to use the most knowledgeable workers in
responding to plant events and conditions. This may provide less safety
and greater risk as compared with the less burdensome scheduling
approaches that licensees would be allowed to use under the alternative
to the minimum days off requirements under the proposed rule.
For these reasons, the NRC concludes that this rulemaking would not
have a significant adverse impact on the environment. This discussion
constitutes the environmental assessment for this proposed rule.
However, public stakeholders should note that the NRC is seeking public
participation. Comments on any aspect of this environmental assessment
may be submitted to the NRC as indicated under the ADDRESSES section.
XII. Paperwork Reduction Act Statement
The public burden for this information collection is estimated to
be 257 hours, which is insignificant. Because the burden for this
information collection is insignificant, Office of Management and
Budget (OMB) clearance is not required. Existing requirements were
approved by the OMB Control Number 3150-0146.
Abstract
This proposed rule would allow holders of nuclear power plant
[[Page 23216]]
operating licenses the option to use a different method than the one
currently prescribed in the NRC's regulations for determining when
certain nuclear power plant workers must be afforded time off from work
to ensure that such workers are not impaired due to cumulative fatigue
caused by work schedules. Licensees using the alternative method would
calculate the number of hours worked by applicable individuals, with a
per-person limit of a maximum weekly average of 54 hours worked over a
6-week rolling window. Burden would not increase for ongoing
requirements, such as scheduling work hours, recording calculations of
work hours, or recording and trending problems regarding work hours.
Licensees choosing to use the alternate method would incur a one-time
implementation burden to revise FFD procedures, modify their work hour
tracking systems and individual work scheduling systems, and state in
their FFD policies which method of fatigue management is being used.
The NRC is seeking public comment on the potential impact of the
information collections contained in this proposed rule and on the
following issues:
1. Is the proposed information collection necessary for the proper
performance of the functions of the NRC, including whether the
information will have practical utility?
2. Is the estimate of burden accurate?
3. Is there a way to enhance the quality, utility, and clarity of
the information to be collected?
4. How can the burden of the information collection be minimized,
including the use of automated collection techniques?
The public may examine and have copied, for a fee, publicly
available documents, including the NRC Form 670, ``Information Required
for Making an Insignificant Burden Determination To Support a Decision
That OMB Clearance Is Not Required,'' at the NRC's PDR, One White Flint
North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. The NRC
Form 670 and proposed rule are available at the NRC's Web site: http://www.nrc.gov/public-involve/doccomment/omb/index.html for 30 days after
the signature date of this notice.
Send comments on any aspect of these proposed information
collections, including suggestions for reducing the burden and on the
above issues, by May 26, 2011, to the Information Services Branch, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, or by e-mail
to [email protected]; and to Christine J. Kymn, Desk
Officer, Office of Information and Regulatory Affairs, NEOB-10202
(3150-0146), Office of Management and Budget, Washington, DC 20503.
Comments received after this date will be considered if it is practical
to do so, but assurance of consideration cannot be given to comments
received after this date. You may also e-mail comments to [email protected] or comment by telephone at 202-395-4638.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
unless the requesting document displays a currently valid OMB control
number.
XIII. Regulatory Analysis
The NRC has not prepared a full regulatory analysis for this
proposed rulemaking. The NRC has determined that the proposed maximum
average work hours requirement would provide reasonable assurance that
subject individuals are not impaired due to cumulative fatigue caused
by excessive work hours. As such, adequate implementation of the
alternative approach would maintain reasonable assurance that persons
subject to work hour controls can safely and competently perform their
assigned duties and therefore meets the intent of the current minimum
days off requirement. The 2008 10 CFR part 26 final rule contained a
regulatory analysis to support the minimum days off requirement.
Because the proposed approach would offer licensees an alternative that
is generally equivalent to the current minimum days off requirements in
managing cumulative fatigue, the 2008 final rule regulatory analysis
also supports this proposed rule.
Furthermore, both nuclear power plant licensees and individuals
subject to the NRC's existing requirements in 10 CFR 26.205(d)(3)
governing minimum days off would derive substantial benefits if the NRC
were to adopt an alternative approach for controlling cumulative
fatigue through maximum average work hours that could be voluntarily
adopted by those licensees. In addition, the NRC concludes that
providing an alternative would maintain the ability of those licensees
to continue using scheduling practices that have a positive safety
benefit. The NRC's conclusions in this regard are based upon
information presented by two petitioners for rulemaking seeking changes
to the work hour controls in 10 CFR 26.205, NEI's request for
enforcement discretion of those same regulatory provisions in 10 CFR
26.205, evidence gathered from stakeholders at the three public
meetings, and analysis performed by the NRC staff and explained in a
January 4, 2011, memorandum and a February 28, 2011, memorandum to the
Commission. In these memoranda, the NRC staff documented its evaluation
of the options available to the Commission to address the concerns
raised in the petitions for rulemaking and request for enforcement
discretion. At the February 8, 2011, Commission briefing on the
implementation of 10 CFR part 26, stakeholders appeared to support the
use of an expedited rulemaking process to address the issues presented
by the industry. In view of all of this information, the NRC did not
see any value in preparing a more detailed regulatory analysis for this
proposed rule. The NRC requests public comment on this draft regulatory
analysis. Comments on the draft regulatory analysis may be submitted to
the NRC as indicated under the ADDRESSES section of this document.
XIV. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC
certifies that this proposed rule will not, if promulgated, have a
significant economic impact on a substantial number of small entities.
This proposed rule affects only licensees that do not fall within the
scope of the definition of ``small entities'' set forth in the
Regulatory Flexibility Act or the size standards established by the NRC
(10 CFR 2.810).
XV. Backfitting
The NRC has determined that the Backfit Rule, 10 CFR 50.109, would
not apply to this proposed rule, nor would the proposed rule be
inconsistent with any of the finality provisions in 10 CFR part 52. The
proposed rule, in 10 CFR 26.205(d)(7), would provide nuclear power
plant licensees with an alternative for compliance with the existing
controls in 10 CFR 26.205(d)(3) governing minimum days off for certain
nuclear power plant workers. Licensees would be free to comply with
either the existing rule's requirements governing minimum days off or
with the proposed alternative requirements in 10 CFR 26.205(d)(7). The
NRC concludes that a backfit analysis would not be required for this
proposed rule because this proposed rule would not contain any
provisions that constitute backfitting.
The proposed rule would not be inconsistent with any finality
provisions
[[Page 23217]]
in 10 CFR part 52. No standard design certification rule or standard
design approval issued under 10 CFR part 52, or currently being
considered by the NRC, addresses fitness-for-duty requirements in 10
CFR part 26. Accordingly, there are no issues resolved in those design
certification rules or design approvals that would be within the scope
of the minimum days off controls in this proposed rule. In addition,
the NRC has not issued any combined licenses under 10 CFR part 52.
Hence, there are currently no holders of combined licenses who would be
protected by applicable issue finality provisions. The NRC concludes
that this proposed rule would not contain any provisions that would be
inconsistent with any of the finality provisions in 10 CFR part 52.
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,
Management actions, Nuclear power reactors, Protection of information,
Reporting and recordkeeping requirements.
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. 553, the NRC is proposing to
adopt the following amendments 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, 948, as amended, sec. 1701, 106 Stat. 2951, 2952, 2953 (42
U.S.C. 2073, 2111, 2112, 2133, 2134, 2137, 2201, 2297f); secs. 201,
202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 5841,
5842, 5846).
2. Section 26.203 is amended by revising paragraphs (d)(2), (e)(1)
introductory text, (e)(1)(i), and (e)(1)(ii) to read as follows:
Sec. 26.203 General provisions.
* * * * *
(d) * * *
(2) For licensees implementing the requirements of Sec.
26.205(d)(3), records of shift schedules and shift cycles, or, for
licensees implementing the requirements of Sec. 26.205(d)(7), records
of shift schedules and records showing the beginning and end times and
dates of all averaging periods, of individuals who are subject to the
work hour controls in Sec. 26.205;
* * * * *
(e) * * *
(1) A summary for each nuclear power plant site of all instances
during the previous calendar year when the licensee waived one or more
of the work hour controls specified in Sec. 26.205(d)(1) through
(d)(5)(i) and (d)(7) for individuals described in Sec. 26.4(a). The
summary must include only those waivers under which work was performed.
If it was necessary to waive more than one work hour control during any
single extended work period, the summary of instances must include each
of the work hour controls that were waived during the period. For each
category of individuals specified in Sec. 26.4(a), the licensee shall
report:
(i) The number of instances when each applicable work hour control
specified in Sec. 26.205(d)(1)(i) through (d)(1)(iii), (d)(2)(i) and
(d)(2)(ii), (d)(3)(i) through (d)(3)(v), and (d)(7) was waived for
individuals not working on outage activities;
(ii) The number of instances when each applicable work hour control
specified in Sec. 26.205(d)(1)(i) through (d)(1)(iii), (d)(2)(i) and
(d)(2)(ii), (d)(3)(i) through (d)(3)(v), (d)(4) and (d)(5)(i), and
(d)(7) was waived for individuals working on outage activities; and
* * * * *
3. Section 26.205 is amended by revising paragraphs (b)(5), (d)(4),
(d)(5)(i), (d)(5)(ii), and (e)(1)(i) and the introductory text of
paragraph (d)(3), and adding a new paragraph (d)(7) to read as follows:
Sec. 26.205 Work hours.
* * * * *
(b) * * *
(5) Incidental duties performed off site. Licensees may exclude
from the calculation of an individual's work hours unscheduled work
performed off site (e.g., technical assistance provided by telephone
from an individual's home), provided the total duration of the work
does not exceed a nominal 30 minutes during any single break period.
For the purposes of compliance with the minimum break requirements of
Sec. 26.205(d)(2), and the minimum days off requirements of Sec.
26.205(d)(3) through (d)(5) or the maximum average work hours
requirements of Sec. 26.205(d)(7), such duties do not constitute work
periods, work shifts, or hours worked.
* * * * *
(d) * * *
(3) Licensees shall either ensure that individuals have, at a
minimum, the number of days off specified in this paragraph, or comply
with the requirements for maximum average work hours in Sec.
26.205(d)(7). For the purposes of this section, a day off is defined as
a calendar day during which an individual does not start a work shift.
For the purposes of calculating the average number of days off required
in this paragraph, the duration of the shift cycle may not exceed 6
weeks.
* * * * *
(4) During the first 60 days of a unit outage, licensees need not
meet the requirements of Sec. 26.205(d)(3) or (d)(7) for individuals
specified in Sec. 26.4(a)(1) through (a)(4), while those individuals
are working on outage activities. However, the licensee shall ensure
that the individuals specified in Sec. 26.4(a)(1) through (a)(3) have
at least 3 days off in each successive (i.e., non-rolling) 15-day
period and that the individuals specified in Sec. 26.4(a)(4) have at
least 1 day off in any 7-day period;
(5) * * *
(i) During the first 60 days of a unit outage or a planned security
system outage, licensees need not meet the requirements of Sec.
26.205(d)(3) or (d)(7). However, licensees shall ensure that these
individuals have at least 4 days off in each successive (i.e., non-
rolling) 15-day period; and
(ii) During the first 60 days of an unplanned security system
outage or increased threat condition, licensees need not meet the
requirements of Sec. 26.205(d)(3), (d)(5)(i), or (d)(7).
* * * * *
(7) Licensees may, as an alternative to complying with the minimum
days off requirements in Sec. 26.205(d)(3), comply with the
requirements for maximum average work hours in this paragraph.
Licensees voluntarily choosing to comply with the alternative maximum
average work hours requirements in this paragraph are not relieved from
complying with all other requirements in Sec. 26.205 other than Sec.
26.205(d)(3).
(i) Individuals may not work more than a weekly average of 54
hours, calculated using a rolling period of up to six (6) weeks, which
rolls by no more than 7 consecutive calendar days at any time.
(ii) Each licensee shall state, in its FFD policy and procedures
required by Sec. 26.27 and Sec. 26.203(a) and (b), with which
requirements the licensee is complying: the minimum days off
requirements in Sec. 26.205(d)(3) or maximum average work hours
requirements in Sec. 26.205(d)(7).
(e) * * *
(1) * * *
(i) Individuals whose actual hours worked during the review period
exceeded an average of 54 hours per week in any shift cycle while the
[[Page 23218]]
individuals' work hours are subject to the requirements of Sec.
26.205(d)(3) or in any averaging period of up to 6 weeks, using the
same averaging period durations that the licensees use to control the
individuals' work hours, while the individuals' work hours are subject
to the requirements of Sec. 26.205(d)(7);
* * * * *
4. Section 26.207 is amended by revising paragraphs (a)
introductory text and (b) to read as follows:
Sec. 26.207 Waivers and assessments.
(a) Waivers. Licensees may grant a waiver of one or more of the
work hour controls in Sec. 26.205(d)(1) through (d)(5)(i) and (d)(7),
as follows:
* * * * *
(b) Force-on-force tactical exercises. For the purposes of
compliance with the minimum days off requirements of Sec. 26.205(d)(3)
or the maximum average work hours requirements of Sec. 26.205(d)(7),
licensees may exclude shifts worked by security personnel during the
actual conduct of NRC-evaluated force-on-force tactical exercises when
calculating the individual's number of days off or hours worked, as
applicable.
* * * * *
5. Section 26.209 is amended by revising paragraph (a) to read as
follows:
Sec. 26.209 Self-declarations.
(a) If an individual is performing, or being assessed for, work
under a waiver of one or more of the requirements contained in Sec.
26.205(d)(1) through (d)(5)(i) and (d)(7) and declares that, due to
fatigue, he or she is unable to safely and competently perform his or
her duties, the licensee shall immediately stop the individual from
performing any duties listed in Sec. 26.4(a), except if the individual
is required to continue performing those duties under other
requirements of 10 CFR part 26. If the subject individual must continue
performing the duties listed in Sec. 26.4(a) until relieved, the
licensee shall immediately take action to relieve the individual.
* * * * *
6. Section 26.211 is amended by revising paragraphs (b)(2)(iii) and
(d) to read as follows:
Sec. 26.211 Fatigue assessments.
* * * * *
(b) * * *
(2) * * *
(iii) Evaluated or approved a waiver of one or more of the limits
specified in Sec. 26.205(d)(1) through (d)(5)(i) and (d)(7) for any of
the individuals who were performing or directing (on site) the work
activities during which the event occurred, if the event occurred while
such individuals were performing work under that waiver.
* * * * *
(d) The licensee may not conclude that fatigue has not or will not
degrade the individual's ability to safely and competently perform his
or her duties solely on the basis that the individual's work hours have
not exceeded any of the limits specified in Sec. 26.205(d)(1), the
individual has had the minimum breaks required in Sec. 26.205(d)(2) or
minimum days off required in Sec. 26.205(d)(3) through (d)(5), as
applicable, or the individual's hours worked have not exceeded the
maximum average number of hours worked in Sec. 26.205(d)(7).
* * * * *
Dated at Rockville, Maryland, this 13th day of April, 2011.
For the Nuclear Regulatory Commission.
Michael F. Weber,
Acting Executive Director for Operations.
[FR Doc. 2011-9925 Filed 4-25-11; 8:45 am]
BILLING CODE 7590-01-P