[Federal Register Volume 64, Number 230 (Wednesday, December 1, 1999)]
[Proposed Rules]
[Pages 67202-67205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31192]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 26

[Docket No. PRM-26-2]


Barry Quigley

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; notice of receipt.

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SUMMARY: The Nuclear Regulatory Commission is publishing for public 
comment a notice of receipt of a petition for rulemaking dated 
September 28, 1999, that was filed with the Commission by Mr. Barry 
Quigley. The petition was docketed by the NRC on October 7, 1999, and 
has been assigned Docket No. PRM-26-2. The petitioner requests that the 
NRC: (1) Add enforceable working hour limits to 10 CFR Part 26; (2) add 
a criterion to 10 CFR Part 55.33 (a)(1) to require evaluation of known 
sleeping disorders; (3) revise the Enforcement Policy to include 
examples of working hour violations warranting various NRC sanctions; 
and (4) revise NRC Form-396 to include self-disclosure of sleeping 
disorders by licensed operators. The petitioner also requests changes 
to NRC Inspection Procedure 81502, Fitness for Duty Program. The 
petitioner believes that clear and enforceable working hour limits are 
required to ensure that the impact of personnel fatigue is minimized.

DATES: Submit comments by February 14, 2000. Comments received after 
this date will be considered if it is practical to do so, but the 
Commission is able to assure consideration only for comments received 
on or before this date.

ADDRESSES: Submit written comments to the Secretary of the Commission, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
Attention: Rulemakings and Adjudications Staff. Hand deliver comments 
to: 11555 Rockville Pike, Rockville, Maryland between 7:30 a.m. and 
4:15 p.m. Federal workdays.
    For a copy of the petition and the two reports submitted with the 
petition (referenced below), write to David L. Meyer, Chief, Rules and 
Directives Branch, Division of Administrative Services, Office of 
Administration, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001.
    You may also provide comments via the NRC's interactive rulemaking 
website at http://ruleforum.llnl.gov. This site provides the capability 
to upload comments as files (any format), if your web browser supports 
that function. For information about the interactive rulemaking 
website, contact Ms. Carol Gallagher, (301) 415-5905 (e-mail: 
[email protected]).
    The petition and copies of comments received may be inspected and 
copied for a fee at the NRC Public Document Room, 2120 L Street, NW. 
(Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: David L. Meyer, Chief, Rules and 
Directives Branch, Division of Administrative Services, Office of 
Administration, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, Telephone: 301-415-7162 or Toll Free: 1-800-368-5642.

SUPPLEMENTARY INFORMATION:

The Petitioner

    The petitioner is licensed by the NRC as a Senior Reactor Operator 
who is required to comply with all applicable Commission regulations.

Background

    The petitioner states that in an increasingly competitive 
electricity market, the battle cry is ``do more with less.'' According 
to the petitioner, this translates into fewer people who are working 
more and sometimes many more hours at nuclear power plants. The 
petitioner believes that personnel

[[Page 67203]]

mistakes at nuclear power plants can be attributed to fatigue and 
believes that work-hour limits should be required to minimize personnel 
fatigue.
    The petitioner states that in a letter dated May 18, 1999, to 
Congressman Edward J. Markey, then-NRC Chairman Shirley Jackson stated 
that few significant industry events can be attributed to fatigue. 
While the petitioner agrees that this statement is correct, he asserts 
that a review of the NRC's Human Factors Information System (HFIS) 
database suggests that events related to fatigue occur but are not 
reported, or not properly attributed to fatigue. According to the 
petitioner, NRC inspection reports listed 87 occurrences of staffing as 
less than adequate while the industry, using data from the Licensee 
Events Report, only listed 11. For occurrences attributable to 
excessive overtime/acute fatigue, the petitioner states that NRC 
reported 59 occurrences, as compared to 3 occurrences reported by the 
nuclear industry, and for frequent use of overtime/cumulative fatigue, 
NRC reported 28 cases and the industry reported none.
    The petitioner believes that, based on NRC's much higher reporting 
of fatigue-type events, industry's accounting and reporting process is 
non-conservative. The petitioner believes that the tendency of the 
industry to under-report events related to fatigue is all the more 
significant in light of the NRC's trend, as asserted by the petitioner, 
of reducing its inspection efforts at nuclear power plants.
    The petitioner states that while NRC's HFIS database contains more 
events related to fatigue than industry's reporting, the NRC also 
under-reports fatigue issues. The petitioner states that among other 
things, fatigue causes inattention to detail, increased risk-taking, 
and poor work practices. The petitioner cites the following categories 
in the HFIS database to support his position:

    Work practices or skill of the craft less than adequate--If the 
skill of the craft activities are not performed consistent with 
management expectations, safety significance of activity or industry 
standard. 4913 occurrences (NRC and industry combined).
    Non-conservative decision making or questioning attitude less 
than adequate--If personnel fail to stop work or establish 
appropriate controls when presented with unfavorable or uncertain 
work conditions. 1805 combined occurrences.
    Self-checking less than adequate--If a worker fails to self-
check adequately before performing task (Stop, Think, Act, Review). 
618 combined occurrences.
    Awareness or attention less than adequate--Includes problems 
that are due to failing to maintain situational awareness, 
infrequent or ineffective control board monitoring and problems 
arising from being distracted or interrupted. 2389 combined 
occurrences.

    The petitioner states that the 9725 occurrences included in these 
four categories account for almost 30% of the total HFIS entries for 
1996 through 1998. The petitioner believes that while there are 
certainly other causes for these occurrences, such as distractions and 
interruptions, fatigue most probably played a role in a respectable 
percentage of them. The petitioner cites a National Transportation 
Safety Board (NTSB) report, which was attached to the petition, that 
found that, depending on the transportation mode, 21% to 33% of 
consequential events were fatigue-related, whereas the NRC only 
attributed 90 occurrences (out of the 9725 included in the HFIS 
database) directly to fatigue. The petitioner states that it is highly 
unlikely that less than 1% were caused by fatigue. The petitioner 
compares the fact that the Department of Transportation (DOT) spent 
over $30 million on fatigue research in fiscal years 1990 to 1998, 
while no figures could be found in the NRC budget related to fatigue 
research. The petitioner compares NTSB and DOT research reports to 
recent NRC research reports and asserts that the NRC may not be 
qualified to detect fatigue-related events until they grow to the size 
of the Peach Bottom occurrence (the NRC ordered two reactors at Peach 
Bottom nuclear plant to be shut down in March 1987 after NRC inspectors 
discovered licensed operators asleep in the control room).
    The petitioner specifies three other factors that reduce faith in 
NRC and the industry's reporting on fatigue:
    1. Some fatigue errors have latent effects that may not be 
discovered for quite sometime. The examples the petitioner provided 
were valve mispositionings and procedures with technical errors caused 
by an over-worked and fatigued staff. The petitioner asserts that the 
cause for such errors would be difficult to trace.
    2. The HFIS database shows 392 occurrences for which a root cause 
analysis was determined to be less than adequate. The petitioner 
questions the quality of the LER's presented by industry to identify 
all causes of an event.
    3. The NRC is not aggressive in looking for fatigue issues. The 
petitioner notes that NRC indicated that it is very difficult to get 
overtime issues into Inspection Reports because it is concerned that 
the licensee may object.
    The petitioner states that it appears that the policy of NRC is to 
wait for something bad to happen and then raise the issue with licensee 
management.

Petitioner's Conclusion

    The petitioner states that the NRC issued a Generic Letter 82-12 on 
June 15, 1982, to all plant owners that provided guidelines that 
established controls to prevent situations where fatigue could reduce 
the ability of personnel to maintain the reactor in a safe condition. 
According to the petitioner, the issuance of the Generic Letter 17 
years ago indicates that NRC is well aware of the threat and undue risk 
posed by fatigue on workers to safely operate a nuclear power plant, 
and therefore required plant owners to control working hours. The 
petitioner notes that with electricity deregulation forcing plant 
owners to slash staffing levels and work the survivors longer and 
longer hours, that the NRC has redefined the fatigue risk because few 
significant events can be precisely attributed to fatigue. However, 
according to the petitioner, the NRC shut down the Peach Bottom plant 
without first proving that a single significant event at the facility 
could be attributed to operator inattentiveness (i.e., napping). The 
petitioner also states that in the 1980's, although few significant 
events were attributed to drug or alcohol abuse, the NRC took action to 
reduce the risk of an accident caused by degraded human performance. 
Specifically, the NRC implemented a Fitness-for-Duty rule that includes 
individual and corporate sanctions. The petitioner requests that the 
NRC take comparable steps to prevent degraded human performances 
resulting from fatigue.

The Petitioner's Proposed Amendments

    The petitioner recommends the following amendments to 10 CFR Part 
26.
    (1) The following limits apply for personnel performing safety-
related work:
    (a) During non-outage periods:
    (i) 60 hours per week, and
    (ii) 108 hours in two weeks.
    (b) During outage periods 1:
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    \1\ Outage periods are defined as the 48 hours prior to reactor 
shutdown, the duration of the shutdown and the 48 hours after 
synchronizing to the grid.
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    (i) 72 hours per week, and

[[Page 67204]]

    (ii) 132 hours in two weeks.
    (c) The maximum annual limits 2 as a percentage over 
2080 hours are:

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                                                           Shift workers
                   Year ending                   --------------------------------      Non-        Roving crews
                                                     Licensed      Non-licensed    shiftworkers
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Dec 31, 2003 3..................................              20              20              30              30
Dec 31, 2002....................................              25              20              35              35
Dec 31, 2001....................................              30              25              40              40
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    (d) No part of a 16-hour shift shall occur between the hours of 11 
pm and 7 am, except for turnover.
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    \3\ And all subsequent years.
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    (e) No more than two 16-hour shifts shall occur in a rolling 7-day 
period. The first 16-hour shift shall be followed by a 16-hour rest 
period. The second 16-hour shift shall be preceded by a 24-hour rest 
period. The rest periods may be combined.
    (f) No more than 24 hours in a 48 hour period.
    (g) The limits apply to an individual regardless of work location 
or employer.
    (h) Turnovers:
    (i) A turnover time of 1 hour (1\1/2\ hours outage) may be 
allocated in any manner between an individual's oncoming and offgoing 
turnovers. Any balance of time remaining from turnover shall not be 
used for other purposes.
    (ii) Exceeding the turnover time limit shall not constitute 
violation of the working hour limits provided:
    (I) The condition is entered into the Licensee's Corrective Action 
program, and
    (II) There is no more than one occurrence per individual per week.
    (iii) The turnover time allowance shall only apply to written 
turnovers conducted face-to face.
    (2) The following exceptions apply to the work hour limits of 
paragraph (1) provided the licensee takes action to minimize the 
effects of fatigue on human performance. Such actions may be 
demonstrated by compliance with paragraph (3) in addition to increased 
supervisory oversight.
    (a) Activation of the Emergency Plan under 10 CFR 50.47,
    (b) For those plants which shutdown for severe weather, the limits 
are suspended from the beginning of the power reduction until the 
severe weather has passed,
    (c) The transition to Daylight Savings time in the Fall. No showing 
of minimization of fatigue is required for this exemption.
    (d) Plant transients, typically large unplanned power changes or 
initiation of major Engineered Safety Features. Avoidance of Technical 
Specifications required shutdowns is not a transient covered by this 
exemption.
    (e) For extended shutdown, the biweekly limit increases to 144 
hours per week (weekly remains at 72 hours) provided:
    (i) Prior to restart or fuel load, a plan is in place to ensure 
adequate rest for personnel performing critical tasks. Critical tasks 
are on a higher tier than safety-related work and are physical and 
administrative tasks directly related to fuel load and startup of the 
primary and secondary plant. Critical tasks would typically be those 
related to fuel load, primary and secondary system fill and vents, 
safety-related system testing, plant heatup and reactor startup 
(through the reaching of full power).
    (ii) The role of fatigue is specifically and promptly evaluated for 
all-- 4
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    \4\ This includes events on other units of multi-unit sites if 
the personnel are under the extended outage provision.
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    (I) Events classified as Conditions Adverse to Quality under 10 CFR 
part 50, Appendix B, Criterion XVI,
    (II) Events classified as Conditions Adverse to Quality under 10 
CFR part 50, Appendix B, Criterion XVI and attributed to personnel 
error,
    (III) Reportable events of 10 CFR parts 20 and 50,
    (IV) OSHA recordable injuries,
    (V) Traffic accidents involving employees on their way home from 
work 5
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    \5\ Letter from D. Lochbaum, Union of Concerned Scientists to 
Chairman Jackson, NRC, March 18, 1999.
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    (3) Training and monitoring of fatigue.
    (a) Licensees shall provide initial and continuing fatigue 
mitigation training to personnel performing safety-related work, their 
supervisors and managers. This training shall be developed in 
accordance with the systems approach to training of 10 CFR 55.4. At a 
minimum this training will cover:
    (i) Effects of diet, gender, and age on fatigue,
    (ii) Importance and ways to maximize rest in off-hours,
    (iii) Symptoms of major sleep disorders, and
    (iv) Other items as determined during the rule comment period.
    (b) Licensees shall provide training to supervisors of personnel 
performing safety-related work in the monitoring and detection of 
fatigue.
    (4) Section 26.20, ``Written Policy and Procedures,'' should be 
revised to remove the word ``fatigue'' from:
    ``Licensee policy should also address other factors that could 
affect fitness for duty such as mental stress, fatigue and illness.'' 
(The purpose of this change is to eliminate conflicts with the 
prescriptive working hour limits and inclusion of the word ``fatigue'' 
in a statement that is essentially only a recommendation as indicated 
by the word ``should''.)
    (5) A new definition should be added to 10 CFR Part 26 for the term 
``Working Hours:''
    Working Hours--All hours performing safety-related services for the 
licensee while on property owned or controlled by the licensee. This 
includes training and meetings. Breaks, paid, or unpaid, are also 
included in the calculation of working hours for fatigue. This is 
appropriate since fatigue is related to several factors, including time 
since awakening.

Proposed Revisions to NRC Form 396 and 10 CFR Part 55

    NRC Form 396 and 10 CFR Part 55 should be revised to require self-
disclosure and evaluation of known sleep disorders.
    (6) Other Changes: A full set of examples ranging from non-cited to 
Level I violations should be provided in the Enforcement Manual.

Bases for Proposed Changes

Weekly/Biweekly

    The petitioner states that the weekly and biweekly limits are to 
prevent cumulative fatigue over the short-term. A 60-hour limit allows 
5 twelve-hour shifts or 7 eight-hour shifts. The biweekly limit would 
limit one of the weeks to 48 hours. The 108-hour total is based on 
limiting the total hours worked for twelve hour shifts to a

[[Page 67205]]

reasonable number and ensuring those working eight-hour shifts have at 
least one day off every two weeks.

Annual

    The petitioner states that the annual limits address longer-term 
cumulative fatigue and are based on NUREG/CR-4248, ``Recommendation for 
NRC Policy on Shift Scheduling and Overtime at Nuclear Power Plants,'' 
6 which recommended limiting overtime to 2,260 hours per 
year. The petitioner specifies that the maximum allowed by this 
petition exceeded this amount but it is not likely that the limit of 
2260 hours could be reached. According to the petitioner, the table 
includes a workdown curve for each of the categories to ensure that 
some amount of immediate relief is provided while allowing a gradual 
transition period. The shiftworker limits are lower to allow for the 
impact of rotating shiftwork, constant disruption of circadian rhythms 
and working during the pre-dawn trough in performance. The licensed 
operator curve is more gradual to allow more time to increase the 
number of operators, if the licensee chooses to do so. The roving crew 
limits are needed to prevent multi-site utilities from almost 
constantly having people move from site to site using the outage limits 
on working hours.
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    \6\ Battelle Pacific Northwest Laboratories, Richland, WA July 
1985.
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16-Hour Shifts

    The petitioner states that the 16-hour shift limits address acute 
fatigue. The petitioner offers that a substantial amount of first- and 
second-hand experience is available to him that shows that any 16-hour 
shift involving a midshift is foolhardy. The petitioner offers the 
following scenario for a 16-hour shift from 3 pm to 7 am.

    Assume the worker arises at 8 am, after a restful sleep, on the 
day he is to work. A nap prior to 3 pm will be difficult, absent the 
use of sleeping aids, since sleeping during the day is not natural 
and the worker should still be rested from the previous night. Near 
the end of the shift, the worker will have been awake for almost 24 
hours.

The petitioner states that Australian researchers 7 show 
that after 24 hours awake, the performance degradation is equivalent to 
a Blood Alcohol Content of 0.10%. Additionally, the petitioner states 
that with the increase in online maintenance, midshifts are no longer 
the quiet times they were a few years ago and that although the 
increased workload provides increased stimulation, stimulation is no 
substitute for rest. The petitioner believes the increased activities 
provide more opportunities for mishaps.
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    \7\ Nature, Vol. 388, July 17, 1997 pg 235.
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    The petitioner offers a similar scenario for a worker who rises at 
8 am and works on a shift from 11 pm to 3 pm. The petitioner states 
that at the end of the shift, the worker will have been up for 31 hours 
with a 3-hour nap. The petitioner states that although short naps (30 
minutes) may have some restorative ability, they must be taken when 
tired. The petitioner notes that this would qualify as a ``split rest 
period'' under NTSB rules and that NTSB is requesting the DOT to 
abolish split rest periods due to lack of effectiveness.

Individual Basis

    The petitioner believes that limiting hours worked, regardless of 
employer or location, is necessary to ensure that contractors or others 
are not excessively fatigued.

Turnover Limits

    The petitioner states that turnovers require special consideration. 
The petitioner believes that orderly transfer of information from one 
shift to the next is essential for plant safety and that it is as 
equally important that the work hours are minimized and the turnover 
allowance is not abused. The petition states there is substantial 
potential for abuse of the turnover allowance since some may see it as 
a ``free'' extra hour. For example, a maintenance worker or engineer 
(personnel who typically do not have written turnover) could simply 
tack on an hour to their workday, absent a specific prohibition. The 
petitioner also notes that abuses are possible for personnel using 
written turnovers, i.e., if a turnover is normally completed in 15 
minutes, the extra 45 minutes shall not be used for other 
administrative duties. The petitioner states that this is consistent 
with the requirement to control working hours to limit the effect of 
fatigue.
    The petitioner further states that there are times when plant 
events require extended turnovers. The once a week exception is judged 
adequate based on the petitioner's experience as an on-shift SRO. The 
petitioner indicated that the requirement to enter the condition into 
the Licensee's Corrective Action program is required to provide both 
visibility and tracking, the assumption being that a high number 
indicates either an excessive administrative burden or an individual 
performance issue.

Exemption

    The list of exemptions is considered reasonable based on the 
petitioner's experience. It is anticipated to grow slightly during the 
rulemaking phase as more experience is added. The overriding goal of 
the exemptions is that they be limited both in circumstance and number. 
The purpose is to avoid the ambiguity of Generic Letter 82-12.

NRC Form 396 and 10 CFR Part 55

    The petitioner believes this revision would allow the NRC to issue 
conditional licenses with the appropriate compensatory actions. The 
petitioner states that this approach was adopted by the Coast Guard.

Other Changes

    The petitioner believes that a full set of examples in the 
Enforcement Manual would provide clear guidance to NRC staff on the 
appropriate level of sanctions required.

Reference Documents

    The petitioner states that documents used in support of this 
petition were readily available on websites of the NRC and the NTSB and 
in the NRC Public Document Room. The petitioner also attached two 
documents that in his view summarize the hazards of fatigue. They are 
Overtime and Staffing Problems in the Commercial Nuclear Power 
Industry, Union of Concerned Scientists (March 1999), and Evaluation of 
U.S. Department of Transportation Efforts in the 1990s to Address 
Operator Fatigue, NTSB Safety Report NTSB/SR-99/01 (May 1999).

    Dated at Rockville, Maryland, this 24th date of November 1999.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 99-31192 Filed 11-30-99; 8:45 am]
BILLING CODE 7590-01-P