[Federal Register Volume 80, Number 236 (Wednesday, December 9, 2015)]
[Proposed Rules]
[Pages 76394-76398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30578]
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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. 80, No. 236 / Wednesday, December 9, 2015 /
Proposed Rules
[[Page 76394]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 26
[NRC-2009-0090]
RIN 3150-AF12
Fitness-for-Duty Programs
AGENCY: Nuclear Regulatory Commission.
ACTION: Rulemaking activity; discontinuation.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is discontinuing
a rulemaking activity that would have amended its regulations governing
fatigue management programs for nuclear power plant workers. The
purpose of this action is to inform members of the public that this
rulemaking activity is being discontinued and to provide a discussion
of the NRC's decision to discontinue it.
DATES: As of December 9, 2015, the rulemaking activity is discontinued.
ADDRESSES: Please refer to Docket ID NRC-2009-0090 when contacting the
NRC about the availability of information for this action. You may
obtain publicly-available information related to this action by any of
the following methods:
Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2009-0090. Address
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions, contact
the individual listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly-available documents online in the
ADAMS Public Document collection at http://www.nrc.gov/reading-m/adams.html. To begin the search, select ``ADAMS Public Documents'' and
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS,
please contact the NRC's Public Document Room (PDR) reference staff at
1-800-397-4209, 301-415-4737, or by email to [email protected]. For
the convenience of the reader, instructions about obtaining materials
referenced in this document are provided in the ``Availability of
Documents'' section.
NRC's PDR: You may examine and purchase copies of public
documents at the NRC's PDR Room O1-F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852.
FOR FURTHER INFORMATION CONTACT: Stewart Schneider, Office of Nuclear
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone: 301-415-4123, email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On March 31, 2008, the NRC issued a final rule that substantially
revised its regulations for fitness-for-duty programs in part 26 of
Title 10 of the Code of Federal Regulations (10 CFR), ``Fitness for
Duty Programs.'' The 2008 final rule established 10 CFR part 26,
subpart I, ``Managing Fatigue,'' to require that nuclear power plant
licensees provide reasonable assurance that the effects of worker
fatigue are managed commensurate with maintaining public health and
safety. The regulations in 10 CFR part 26 require licensees to manage
worker fatigue at reactors that are operating or under construction (no
later than the receipt of special nuclear material in the form of fuel
assemblies), for all individuals who are granted unescorted access to
protected areas of the plant. The regulations also require licensees to
control the work hours of those individuals whose work activities have
the greatest potential to adversely affect public health and safety or
the common defense and security if their performance is degraded by
fatigue (e.g., licensed operators, maintenance technicians, security
officers).
The Commission's staff requirements memorandum (SRM), SRM-SECY-06-
0244, ``Final Rulemaking-10 CFR part 26-Fitness-for-Duty Programs,''
approving the 2008 final rule directed the NRC staff to ensure that
personnel who actually perform independent quality control/quality
verification (QC/QV) checks under the licensee's NRC-approved Quality
Assurance Program are subject to the same 10 CFR part 26, subpart I,
provisions as operating personnel defined in Sec. 26.4(a)(1). The SRM
also directed the NRC staff to publish the final rule without the QC/QV
provision, if the staff determined that its inclusion would require re-
notice and comment under the Administrative Procedure Act of 1946.
Because the NRC staff determined that including the QC/QV provision
would require re-noticing of the rule to provide a new opportunity for
public comment, the NRC issued the final rule without imposing work
hour controls on individuals performing QC/QV activities.\1\ As
directed in the SRM, the NRC staff initiated a new proposed rulemaking
to apply the work hour controls for operating personnel to the QC/QV-
dedicated personnel who perform QC/QV checks.\2\
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\1\ The QC/QV activities are a part of the planned and
systematic actions under a licensee's quality assurance program that
are necessary to provide adequate assurance that a safety-related
structure, system, and component will perform satisfactorily in
service. The QC/QV inspections are a subset of the QC/QV activities.
\2\ ``QC/QV-dedicated personnel'' means individuals who perform
QC/QV activities and are not otherwise subject to the work hour
controls in 10 CFR part 26, subpart I.
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On September 10, 2012, the NRC published the regulatory basis and
preliminary proposed rule language in support of the QC/QV proposed
rulemaking. Because the documents were made publicly available to
provide preparatory material for discussion in future public meetings,
a public comment period was not initiated.
The NRC staff held multiple public meetings between December 2011
and February 2014 to discuss the QC/QV rulemaking and other potential
changes to 10 CFR part 26, subpart I. The meetings were attended by
members of the nuclear power reactor community, organized labor,
contractors, and the media. Summaries of these meetings are publicly
available at http://www.regulations.gov under Docket ID NRC-2009-0090.
II. Petitions for Rulemaking
The NRC received petitions for rulemaking (PRMs) regarding 10 CFR
part 26, subpart I, from the Professional Reactor Operator Society
(PROS), the Nuclear Energy Institute (NEI), and Mr. Erik Erb following
issuance of the 2008 final rule.
[[Page 76395]]
In the SRM to SECY-11-0003/0028, ``Status of Enforcement Discretion
Request and Rulemaking Activities Related to 10 CFR part 26, subpart I,
`Managing Fatigue' and Options for Implementing an Alternative Interim
Regulatory Approach to the Minimum Days Off Provisions of 10 CFR part
26, subpart I, `Managing Fatigue,' '' the Commission directed the NRC
staff to address these PRMs in a rulemaking effort separate from the
alternative to the minimum days off (MDO) rulemaking. The scope of the
alternative MDO rulemaking was limited solely to providing an
alternative to the then-current requirements for minimum days off in 10
CFR part 26, subpart I. This rulemaking provided a new requirement for
working a 54-hour per week average over a rolling period of up to 6
weeks.
On May 16, 2011, the NRC published three documents in the Federal
Register (one for each PRM) informing the public that the issues raised
in each PRM would be considered in the planned QC/QV rulemaking. The
three PRMs are discussed below.
(1) PRM-26-3 Submitted by Robert N. Meyer on Behalf of PROS
Robert N. Meyer on behalf of PROS, an organization of operations
personnel employed at nuclear power plants throughout the United
States, submitted a PRM dated October 16, 2009. The petitioner
requested that the NRC change the term ``unit outage'' to ``site
outage'' in 10 CFR part 26 and that the definition of ``site outage''
read ``up to 1 week prior to disconnecting the reactor unit from the
grid and up to 75-percent turbine power following reconnection to the
grid.'' The NRC published a notice of receipt of, and request for
public comment on, the PRM on November 27, 2009. The public comment
period ended on February 10, 2010, and the NRC received 4 comment
letters from NEI, nuclear power plant operators and managers, and a
private citizen. The comments generally supported the petition.
(2) PRM-26-5 Submitted by Anthony R. Pietrangelo on Behalf of NEI
Anthony R. Pietrangelo on behalf of NEI, a nuclear power industry
trade association, submitted a PRM dated September 3, 2010. The
petitioner requested that the NRC amend its regulations regarding
fitness-for-duty programs to refine existing requirements based on
experience gained since the regulations were last amended in 2008. The
NRC published a notice of receipt of, and request for public comment
on, the PRM on October 22, 2010. The public comment period ended on
January 5, 2011, and the NRC received 39 comment letters from
corporations, professional organizations, and private citizens. Of
these 39 comment letters, 11 specifically voiced support for the
petition, while 13 voiced opposition. Those comment letters that voiced
neither support for nor opposition to the petition itself discussed a
diverse range of perspectives on the fatigue management provisions
contained in 10 CFR part 26, subpart I.
(3) PRM-26-6 Submitted by Erik Erb and 91-Co-Signers
Erik Erb and 91 co-signers submitted a PRM dated August 17, 2010.
The NRC published a notice of receipt of, and request for public
comment on, the PRM on November 23, 2010. The petitioner requested that
the NRC amend its fitness-for-duty regulations to decrease the minimum
days off requirement from an average of 3 days per week to 2.5 or 2
days per week for security officers working 12-hour shifts. The public
comment period ended on February 7, 2011, and the NRC received 5
comment letters from coroporations, professional organizations, and
private citizens. The comments generally supported the petition.
III. Rulemaking Discontinuation
In SECY-15-0074, ``Discontinuation of Rulemaking Activity--Title 10
of the Code of Federal Regulations Part 26, Subpart I, Quality Control
and Quality Verification Personnel in Fitness for Duty Program,'' the
NRC staff requested Commission approval to discontinue the QC/QV
rulemaking. This request was based on the following factors: (1) QC/QV
inspections are most often performed by maintenance personnel who are
already covered by the work hour controls in 10 CFR part 26, subpart I;
(2) the few remaining inspections are performed by a small number of
QC/QV-dedicated personnel; and (3) backfitting \3\ the 10 CFR part 26,
subpart I, work hour controls to the QC/QV-dedicated personnel would
not result in a substantial increase in the overall protection of the
public health and safety or common defense and security.
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\3\ 10 CFR 50.109, ``Backfitting.''
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In the SRM to SECY-15-0074, the Commission approved the NRC staff's
request to discontinue the QC/QV rulemaking activity. The Commission
directed the NRC staff to inform the public that the NRC is no longer
pursuing rulemaking in this area and that the three PRMs will be
addressed in a separate action.
IV. Public Comments Outside the Scope of the Alternative to the Minimum
Days Off Proposed Rule
On April 26, 2011, the NRC published a proposed rule to provide
licensees with an option for managing cumulative fatigue that differed
from the minimum days off requirements in Sec. 26.205(d)(3) (76 FR
23208). The NRC received two comment submissions from private citizens
on the proposed rule that were determined to be outside of the scope of
that limited rulemaking activity. The Commission had previously
directed the NRC staff in SRM-SECY-11-0003/0028 to consider in a
separate rulemaking activity any comments on the alternative MDO
proposed rule that were determined to be outside the limited scope of
the rulemaking. Therefore, the Federal Register notice for the final
rule stated that public comments outside of the scope of the proposed
rule would be considered in the QC/QV rulemaking (76 FR 43534, 43540;
July 21, 2011). Because the QC/QV rulemaking is being discontinued, the
NRC's responses will be provided here.
Comment: One commenter remarked that some duties do not require
constant surveillance, so the individuals performing these duties
should not be subject to the fatigue management requirements. The
commenter also stated that it is more important to have a qualified
person performing a task than it is to ensure that the person
performing the task complies with the work hour controls. According to
the commenter, the fatigue management requirements are too complex and
do not guarantee that an individual subject to the work hour
requirements will diligently perform his or her duties.
NRC Response: The NRC agrees in part and disagrees in part with the
comment. The NRC has consistently held that work conducted within the
protected area of a nuclear power plant is of such safety significance
that individuals granted unescorted access to those protected areas
must be fit for duty, including management of the effects of cumulative
and acute fatigue. However, the NRC recognizes the functions that
individuals within different job categories perform differ in their
potential impact on plant safety and security. Therefore, the NRC has
identified specific categories of individuals in Sec. 26.4 who require
additional work hour controls due to their job function. This graded
approach provides the maximum flexibility for nuclear power plant
licensees and individuals while providing reasonable assurance that
those individuals granted
[[Page 76396]]
unescorted access to the protected areas of nuclear power plants are
fit to safely and competently perform their duties free from the
adverse effects of cumulative and acute fatigue.
Further, the NRC has neither proposed nor finalized fatigue
management regulations that require nuclear power plant licensees to
choose between having a qualified individual perform a task or having a
well-rested individual perform a task. For circumstances outside the
licensee's reasonable control in which the potential for such a choice
exists, Sec. 26.207, ``Waivers and exceptions,'' establishes specific
conditions in which licensees may waive or exclude personnel from the
work hour controls. In addition, licensees have the option to provide
an escort to individuals who may be needed for a short period in
unusual situations without subjecting them to the work hour controls.
On a day-to-day basis, however, licensees need to ensure that personnel
meet the applicable qualification requirements for the tasks they are
assigned to perform and are fit for duty.
The NRC also disagrees that the fatigue management requirements of
10 CFR part 26, subpart I, including the voluntary alternative to the
MDO provisions in Sec. 26.205(d)(3), are too complex. The NRC
acknowledges that there are significant administrative requirements
that are part of the fatigue management regulations. However, the NRC
has sought out opportunities to relieve administrative burden where
possible while still maintaining the performance objectives of the
rule. For example, the voluntary alternative to the MDO provisions in
Sec. 26.205(d)(3) provides a significant reduction in administrative
burden as it permits nuclear power plant licensees to manage cumulative
fatigue by limiting an individual's work hours to an average of not
more than 54-hours per week over a 6-week rolling period.
The NRC agrees, however, that compliance with the fatigue
management provisions of 10 CFR part 26, subpart I, does not guarantee
that an individual subject to the work hour requirements will
diligently perform his or her duties. As stated in the statement of
considerations for the 2008 part 26 final rule, compliance with the
work hour requirements alone will not ensure proper fatigue management.
It remains the responsibility of licensees and individuals granted
unescorted access to nuclear power plants to ensure that individuals
subject to the fatigue management provisions of 10 CFR part 26, subpart
I, are properly rested to safely and competently perform their duties.
Comment: One commenter claimed that the 10 CFR part 26, subpart I,
work hour controls do not reduce worker fatigue during outages but can
increase fatigue during outages. Specifically, the commenter noted that
when an individual works a backshift (i.e., night shift) schedule
during outages, taking a 1-day break disrupts that person's sleep
pattern. Recovery from this disruption takes several days, therefore
inducing fatigue. The commenter concluded that once a person adjusts to
the unnatural sleep pattern of the night shift, it is far better to
continue that pattern for the duration of the outage. The commenter
also stated that the rule has caused a drop in his earnings.
NRC Response: The NRC agrees in part with the comment. Under
circumstances postulated by the commenter (i.e., a 1-day break during
consecutive night shifts), the adjustment of an individual's sleep-wake
cycle to night shift can be affected by cues that influence the sleep-
wake cycle, such as exposure to bright sunlight. However, the break and
day off requirements of 10 CFR Part 26, subpart I, are minimum
requirements (i.e., they do not require a schedule that provides only
1-day off during consecutive night shifts, as described by the
commenter), and they are not limited to serve as a means for
establishing shift schedules. As stated in Section 2.3.5 of NUREG-1912,
``Summary and Analysis of Public Comments Received on Proposed
Revisions to 10 CFR part 26--Fitness for Duty Program,'' the NRC
intends that the maximum work hour and minimum break and day off
requirements that are specified in Sec. 26.205(d) be applied to
infrequent, temporary circumstances. They should not be used as
guidelines or limits for routine work scheduling. In addition, the
Sec. 26.205(d) work hour controls do not address several elements of
routine schedules that can significantly affect worker fatigue. These
include shift length, the number of consecutive shifts, the duration of
breaks between blocks of shifts, and the direction of shift rotation.
Therefore, Sec. 26.205(c) requires licensees to schedule personnel
consistent with preventing impairment from fatigue from these
scheduling factors, including periods of high workload during outages.
The rule requires licensees to address scheduling factors, because
human alertness and the propensity to sleep vary markedly through the
course of a 24-hour period. These circadian variations are the result
of changes in physiology outside the control of the individual. Work,
with the consequent timing of periods of sleep and wakefulness, may be
scheduled in a manner that either facilitates an individual's
adaptation to the work schedule or challenges the individual's ability
to get adequate rest. Therefore, the duration, frequency, and
sequencing of shifts, particularly for personnel who work rotating
shifts, are critical elements of fatigue management. The importance of
these elements for fatigue management is reflected in guidelines for
work scheduling, such as the Electric Power Research Institute's
report, EPRI-NP-6748, ``Control-Room Operator Alertness and Performance
in Nuclear Power Plants,'' and in technical reports, such as the NRC's
NUREG/CR-4248, ``Recommendations for NRC Policy on Shift Scheduling and
Overtime at Nuclear Power Plants,'' and the Office of Technology
Assessment's report, OTA-BA-463, ``Biological Rhythms: Implications for
the Worker.'' Although research provides clear evidence of the
importance of these factors in developing schedules that support
effective fatigue management, the NRC also recognizes that the
complexity of effectively addressing and integrating each of these
factors in work scheduling decisions precludes a prescriptive
requirement. Therefore, Sec. 26.205(c) establishes a non-prescriptive,
performance-based requirement that also applies to shift scheduling
during outages.
Further, the NRC disagrees that the requirements of 10 CFR part 26,
subpart I, have resulted in a pay cut for the commenter and notes that
the work hour requirements require licensees to manage fatigue, in
part, by limiting work hours, not compensation. Furthermore, the work
hour controls provide licensees with a significant amount of
flexibility when establishing schedules, and those work hour controls
continue to allow for overtime. One objective of the NRC's fitness-for-
duty program is to ``provide reasonable assurance that the effects of
fatigue and degraded alertness on individuals' abilities to safely and
competently perform their duties are managed commensurate with
maintaining public health and safety.'' Therefore, the NRC's focus and
mission is on safety, not compensation and wages.
V. Availability of Documents
The documents identified in the following table are available to
interested persons as indicated.
[[Page 76397]]
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Adams accession No./Federal
Document Register Notice/Web link
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U.S. Nuclear Regulatory Commission, ML102520362.
NUREG/CR-4248 (PNL-5435),
``Recommendations for NRC Policy on
Shift Scheduling and Overtime at
Nuclear Power Plants'' (July 1985).
Electric Power Research Institute, EPRI- http://www.epri.com/abstracts/
NP-6748, ``Control-Room Operator Pages/
Alertness and Performance in Nuclear ProductAbstract.aspx?ProductI
Power Plants'' (March 1, 1990). d=NP-6748.
U.S. Congress, Office of Technology https://www.princeton.edu/~ota/
Assessment, OTA-BA-463, ``Biological disk1/1991/9108/9108.PDF.
Rhythms: Implications for the Worker''
(September 1991).
Staff Requirements--SECY-06-0244--Final ML071070361.
Rulemaking--10 CFR Part 26--Fitness-for-
Duty Programs (April 17, 2007).
Fitness for Duty Programs; Final rule 73 FR 16966.
(March 31, 2008).
PRM-26-3, Petition to Amend 10 CFR part ML092960440.
26, ``Fitness-for-Duty Programs,''
filed by the Professional Reactor
Operator Society, Docket ID NRC-2009-
0482 (October 16, 2009).
Professional Reactor Operator Society; 74 FR 62257.
Notice of Receipt of Petition for
Rulemaking [Docket No. PRM-26-3; NRC-
2009-0482] (November 27, 2009).
PRM-26-6, Petition to Amend 10 CFR part ML102630127.
26, ``Fitness-for-Duty Programs,''
filed by Erik Erb, Docket ID NRC-2010-
0310 (August 17, 2010).
PRM-26-5, Petition to Amend 10 CFR part ML102590440.
26, ``Fitness-for-Duty Programs,''
filed by the Nuclear Energy Institute,
Docket ID NRC-2010-0304 (September 3,
2010).
Anthony R. Pietrangelo on Behalf of the 75 FR 65249.
Nuclear Energy Institute; Notice of
Receipt of Petition for Rulemaking
[Docket No. PRM-26-5; NRC-2010-0304]
(October 22, 2010).
Erik Erb; Notice of Receipt of Petition 75 FR 71368.
for Rulemaking [Docket No. PRM-26-6;
NRC-2010-0310] (November 23, 2010).
U.S. Nuclear Regulatory Commission, ML110310431.
NUREG-1912, ``Summary and Analysis of
Public Comments Received on Proposed
Revisions to 10 CFR Part 26--Fitness
for Duty Programs'' (Comments received
between August 26, 2005 and May 10,
2007) (December 2010).
Staff Requirements--SECY-11-0003--Status 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).
Petition for Rulemaking Submitted by the 76 FR 28192.
Professional Reactor Operator Society;
Petition for rulemaking consideration
in the rulemaking process [Docket No.
PRM-26-3; NRC-2009-0482] (May 16, 2011).
Petition for Rulemaking Submitted by the 76 FR 28192.
Nuclear Energy Institute; Petition for
rulemaking consideration in the
rulemaking process [Docket No. PRM-26-
5; NRC-2010-0304] (May 16, 2011).
Petition for Rulemaking Submitted by 76 FR 28191.
Erik Erb and 91 Cosigners; Petition for
rulemaking consideration in the
rulemaking process [Docket No. PRM-26-
6; NRC-2010-0310] (May 16, 2011).
Comments of Mr. Harry Sloan [Docket ID ML11144A157.
NRC-2011-0058] (May 22, 2011).
Comments of Mr. Mark Callahan [Docket ID ML11146A110.
NRC-2011-0058] (May 25, 2011).
SECY-15-0074, Discontinuation of ML15084A092.
Rulemaking Activity--Title 10 of the
Code of Federal Regulations Part 26,
Subpart I, Quality Control and Quality
Verification Personnel in Fitness for
Duty Program (May 19, 2015).
Staff Requirements--SECY-15-0074-- ML15195A577.
Discontinuation of Rulemaking Activity-
Title 10 of the Code of Federal
Regulations Part 26, Subpart I, Quality
Control and Quality Verification
Personnel in Fitness for Duty Program
(July 14, 2015).
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The NRC may post materials related to this document on the Federal
rulemaking Web site at http://www.regulations.gov under Docket ID NRC-
2009-0090. The Federal rulemaking Web site allows you to receive alerts
when changes or additions occur in a docket folder. To subscribe: (1)
Navigate to the docket folder (NRC-2009-0090); (2) click the ``Sign up
for Emails Alerts'' link; and (3) enter your email address and select
how frequently you would like to receive emails (daily, weekly, or
monthly).
VI. Conclusion
The NRC is discontinuing the QC/QV rulemaking activity for the
reasons previously stated. This rulemaking will no longer be reported
in the NRC's portion of the Unified Agenda of Regulatory and
Deregulatory Actions. Should the NRC determine to pursue rulemaking in
this area in the future, NRC will inform the public through a new
rulemaking entry in the Unified Agenda. While the three notices in the
Federal Register published on May 16, 2011, stated that the PRM dockets
are closed, the NRC will issue a subsequent action on the determination
of these PRMs.
[[Page 76398]]
Dated at Rockville, Maryland, this 19th day of November, 2015.
For the Nuclear Regulatory Commission.
Victor M. McCree,
Executive Director for Operations.
[FR Doc. 2015-30578 Filed 12-8-15; 8:45 am]
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