[Federal Register Volume 71, Number 52 (Friday, March 17, 2006)]
[Proposed Rules]
[Pages 13782-13787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-3922]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 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.
 
 ========================================================================
 

  Federal Register / Vol. 71, No. 52 / Friday, March 17, 2006 / 
Proposed Rules  

[[Page 13782]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 26

RIN-3150-AF12


Fitness for Duty Programs; Notice of Meeting

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of meeting.

-----------------------------------------------------------------------

SUMMARY: NRC's purpose in holding a meeting is to obtain stakeholder 
feedback on the staff's alternative concepts for work-hour controls and 
the applicability of drug, alcohol and, access authorization program 
requirements to combined license (COL) holders during construction. The 
NRC is seeking to have an exchange of views during the scheduled public 
meeting, as part of the development of alternatives. The meeting agenda 
and the staff's concepts for alternative requirements are included in 
the Supplemental Information section of this meeting notice. The staff 
will also discuss the development of implementation guidance for the 
fatigue management provisions of this rulemaking.

DATES: Wednesday, March 29, 2006. 9 a.m.-12 p.m. Session 1 (FFD for COL 
applicants). 1 p.m.-5 p.m. Session 2 (Alternative work hour controls).
    Thursday, March 30, 2006. 9 a.m.-12 p.m. Session 1 (Implementation 
guidance for fatigue management provisions).
    A limited number of telephone lines are available for interested 
members of the public to participate in this meeting via a toll-free 
teleconference: 1-800-638-8081. Pass Code: 9516 (for March 29, 
2006) and 1-800-475-0212. Pass Code 48994 (for March 30, 2006).

ADDRESSES: Nuclear Regulatory Commission, Two White Flint North 
Auditorium, 11545 Rockville Pike, Rockville, Maryland.

FOR FURTHER INFORMATION CONTACT:
David Diec, Nuclear Reactor Regulation, Nuclear Regulatory Commission 
301-415-2834, [email protected].
Dave Desaulniers, Nuclear Reactor Regulation, Nuclear Regulatory 
Commission 301-415-1043, [email protected].
Tim McCune, Nuclear Security and Incident Response, Nuclear Regulatory 
Commission. 301-415-6474, [email protected].

SUPPLEMENTARY INFORMATION: On August 26, 2005, the NRC published 
proposed amendment for Fitness for Duty (FFD) programs to Title 10, 
part 26 of the Code of Federal Regulations (10 CFR part 26) in the 
Federal Register (70 FR 50442). The 120-day public comment period ended 
on December 27, 2005. The NRC received a number of substantive public 
comments both in support of and against the fatigue management 
provisions of the proposed rule that would require a 24-hour break in 
any 7-day period, a 48-hour break in any 14-day period, and collective 
work hour limits. The NRC also received comments on the applicability 
of drug and alcohol and access authorization programs associated with 
facilities under construction. In developing the final rule, the staff 
determined that additional stakeholder input would help resolve these 
issues.

Agenda: Meetings With Stakeholders To Obtain Feedback on Staff's 
Concepts for FFD Requirements for Combined License Holders During 
Construction and Alternative Work Hour Controls

Wednesday March 29, 2006

Session 1 (9 a.m.-12 p.m.) (FFD for COL applicants)
    9 a.m.-9:05 a.m.--Introduction and Opening Remarks (D. Diec/NRC).
    9:05 a.m.-9:10 a.m.--Remarks on Stakeholder Comments on 
Construction Applicant (T. McCune/NRC).
    9:10 a.m.-9:20 a.m.--Summary of Stakeholder Comments on 
Construction Applicant (V. Barnes/NRC).
    9:20 a.m.-9:40 a.m.--Overview of Resolution Concept--Modified FFD 
Program for Individuals with Unescorted Access (T. McCune/V. Barnes/
NRC).
    9:40 a.m.-10:30 a.m.--Questions and Comments.
    10:30 a.m.-10:50 a.m.--Break.
    10:50 a.m.-11:10 a.m.--Overview of Resolution Concept--Full FFD 
Requirements for Certain Individuals With Unescorted Access to a 
Construction Site (T. McCune/V. Barnes/NRC).
    11:10 a.m.-11:55 a.m.--Questions and Comments.
    11:55 a.m.-12 p.m.--Closing Remarks (David Diec/NRC).
Session 2 (1 p.m.-5 p.m.) (Alternative Work Hour Controls)
    1 p.m.-1:10 p.m.--Introduction and Opening Remarks (D. Diec/NRC).
    1:10 p.m.-1:45 p.m.--Summary of Stakeholder Comments on Work Hour 
Controls Overview of Resolution Concept--Non-Outage Periods (D. 
Desaulniers/NRC).
    1:45 p.m.-2:15 p.m.--Questions and Comments.
    2:15 p.m.-2:30 p.m.--Break.
    2:30 p.m.-2:45 p.m.--Overview of Resolution Concept--Outage Periods 
Operations, Maintenance, HP/Chemistry and Fire Brigade Personnel (J. 
Persensky/NRC).
    2:45 p.m.-3:15 p.m.--Questions and Comments.
    3:15 p.m.-3:30 p.m.--Overview of Resolution Concept: Outage Periods 
and Security Personnel (E. Skarpac/NRC).
    3:30 p.m.-4 p.m.--Questions and Comments.
    4 p.m.-5 p.m.--Additional Questions and Comments if needed.

Thursday March 30, 2006

Session 1 (9 a.m.-12 p.m.) (Implementation guidance for fatigue 
management provisions)
    9 a.m.-9:10 am--Introduction and Opening Remarks (D. Diec/NRC).
    9:10 a.m.-9:30 a.m.--Process for development of guidance to support 
Final Rule (NRC Staff).
    9:30 a.m.-10 a.m.--Outline of NEI proposed guidance (NEI).
    10 a.m.-10:30 a.m.--Guidance on 26.199(c)) as a performance-based 
rule (NEI/NRC).
    10:30 a.m.-10:45 a.m.--Break.
    10:45 a.m.-11:15 a.m.--Work hour scheduling (NEI).
    11:15 a.m.-11:30 a.m.--Managing hours worked (calculating hours/
turnover)(NEI).
    11:30 a.m.-11:50 a.m.--Questions and Comments.
    11:50 a.m.-12 p.m.--Summary, Path forward and Closing Remarks (D. 
Diec/NRC).

[[Page 13783]]

Issues Discussion-Alternative Concepts for Fitness-for-Duty 
Requirements for Construction Sites

Background

    The current 10 CFR part 26 requires FFD programs for licensees 
holding permits to construct a nuclear power plant. The provisions of 
the FFD programs are stipulated in Sec.  26.2(c). The proposed 10 CFR 
part 26 updates the rule and increases consistency with changes in 
other relevant Federal rules and guidelines. In particular, the 
proposed Sec.  26.3(e) expands the scope of FFD programs to include 
combined license holders and holders of manufacturing licenses (under 
10 CFR part 52). In addition, the NRC recently asked the Office of the 
Federal Register to publish the agency's proposed Amendment for 
Licenses, Certifications, and Approvals for Nuclear Power Plants to 
Title 10 of the Code of Federal Regulations, parts 1, 2, 10, 19, 20, 
21, 25, 26, 50, 51, 52, 54, 55, 72, 73, 75, 95, 140, 170, and 171 to 
clarify the applicability of various requirements to each of the 
licensing processes (i.e., for early site permit, standard design 
approval, standard design certification, combined licensing, and 
manufacturing license). The NRC expects this proposed amendment to be 
available for public comment around March 13, 2006.
    As a result of public comments on proposed Sec.  26.3(e) and 
industry efforts to develop guidance for implementing FFD programs at 
construction sites for new reactors, the NRC is reconsidering its 
proposed requirements for FFD programs at construction sites (the point 
at which construction begins will be defined in proposed Sec.  
52.103(c) and Sec.  50.10(e)(3) of Title 10 of the Code of Federal 
Regulations). In comments on proposed Sec.  26.3(e), NEI and other 
industry stakeholders suggested that nuclear power plant construction 
sites should be regulated on the basis of industrial safety 
considerations, rather than public health and safety or the common 
defense and security, and that full FFD programs were unnecessary.
    The NRC agrees with these commenters that activities at a 
construction site before the arrival of nuclear fuel will not pose 
immediate radiological risks to public health and safety. However, poor 
workmanship by construction workers who are impaired could introduce 
flaws into systems and components and challenge safe plant operations 
after a new plant goes on-line, if the flaws are not detected through 
the extensive testing of systems and components that is planned for new 
construction. A more immediate concern is individuals working at new 
plant construction sites will have access to information about the 
design, layout, and intended operations of the systems and components 
they construct, information that could be of benefit to an adversary if 
disclosed. Furthermore, some construction workers may have 
opportunities to engage in sabotage. Undetected involvement with 
illegal drugs or an untreated alcohol problem could make these 
individuals vulnerable to influence. Therefore, the NRC believes that 
regulating construction activities for new reactors solely in terms of 
industrial safety would not provide the necessary level of assurance of 
public health and safety and the common defense and security.
    The NRC also recognizes the many logistical and cost challenges of 
implementing several of the requirements in proposed Sec.  26.3(e) for 
FFD programs at construction sites. The NRC agrees that much of the 
workforce at a construction site will likely be transient and rapidly 
changing and that applying some of the proposed requirements to such 
workers may be overly burdensome. For example, the proposed 
requirements that these workers have access to an employee assistance 
program (EAP) and that determinations of fitness be done by a substance 
abuse expert in accordance with proposed Sec.  26.189 may impose costs 
on licensees that are not commensurate with the potential benefits to 
public health and safety and the common defense and security. 
Furthermore, although some new construction sites will be near existing 
nuclear power plants, other construction sites will likely be distant 
from a current licensee's specimen collection facilities for drug and 
alcohol testing. Imposing requirements for random testing of all 
individuals who will work at such ``greenfield'' construction sites 
could have the unintended consequence of requiring licensees to build 
specimen collection and alcohol testing facilities at these sites 
before construction can begin.
    Therefore, the NRC is considering alternative approaches to the 
requirements in proposed part 26 that would apply to construction 
sites. One alternative under consideration is a two-tiered approach to 
FFD programs for construction sites after construction has begun: 
Licensees and other entities could implement modified FFD programs for 
certain individuals who would have unescorted access to the 
construction site while requiring other individuals with specific job 
duties at the construction site to be subject to a full FFD program.

Modified FFD Program for Individuals With Unescorted Access to the 
Construction Site

    The modified FFD program that the NRC is considering would be 
intended to provide reasonable assurance that individuals who have 
unescorted access to a construction site are fit for duty and 
trustworthy and reliable, commensurate with the risk to public health 
and safety and the common defense and security that their activities 
and their access to certain information would impose. The modified FFD 
program would apply only to individuals who have unescorted access to 
the construction site and work at the construction site for more than 5 
days in any 1-year period. Individuals who work at the construction 
site for 5 days or fewer in a year, or who visit the site for other 
reasons, would not be subject to an FFD program, instead would be 
escorted while on site.
    Under the modified FFD program, construction workers who have 
unescorted access to the construction site would be subject to some of 
the elements of a full Part 26 FFD program, but not to others. In 
addition, the licensees and other entities who are responsible for 
construction activities (i.e., combined license holders under part 52 
before the Commission has made the finding under Sec.  52.103(g), 
combined license applicants who have received authorization to 
construct under Sec.  50.10(e)(3), construction permit holders under 
part 50, and construction permit applicants who have received 
authorization to construct under Sec.  50.10(e)(3)) would be permitted 
to establish procedures for implementing certain FFD program elements 
that are best-suited to the circumstances at their site, but may not 
fully comply with the requirements for each program element in proposed 
part 26.
    The following FFD program elements would not apply to individuals 
who have unescorted access to a construction site under the modified 
program: (1) The fatigue management requirements in proposed subpart I; 
(2) the FFD training requirements in proposed Sec.  26.29; (3) random 
drug and alcohol testing requirements in proposed Sec.  26.31(c)(5); 
(4) the requirement for access to an EAP under proposed Sec.  26.35, 
and (5) the determination-of-fitness process described in proposed 
Sec. Sec.  26.187 and 26.189. Individuals who have unescorted access to 
a construction site would be subject to behavioral observation, as 
described in proposed Sec.  26.33, but would not be required to perform 
behavioral observation of others

[[Page 13784]]

because they would not be trained to do so.
    The modified FFD program would be required to implement the 
following specific requirements in proposed part 26: (1) FFD policies 
and procedures for a more limited set of topics than specified in 
proposed Sec.  26.27; (2) pre-access drug and alcohol testing in Sec.  
26.31(c)(1), for-cause drug and alcohol testing in Sec.  26.31(c)(2), 
and post-event testing for industrial accidents, as specified in 
proposed Sec.  26.31(c)(3)(I); (3) the protection of information 
requirements in proposed Sec.  26.37; (4) collecting specimens and 
conducting alcohol tests in accordance with the requirements in 
proposed subpart E, although licensees and other entities would be 
permitted to rely on collection sites that meet the requirements of 49 
CFR part 40.43; (5) at the licensee's discretion, testing of specimens 
at a licensee testing facility in accordance with the requirements in 
proposed subpart F; (6) initial and confirmatory testing of urine 
specimens for drugs and validity at an HHS-certified laboratory in 
proposed subpart G; (7) NRC review of drug test results in accordance 
with Sec. Sec.  26.183 and 26.185; and (8) annual reports of FFD 
program performance data under proposed Sec.  26.217 and the applicable 
reports required under Sec.  26.219(b) of significant FFD policy 
violations or programmatic failures. Imposing the specific requirements 
in proposed part 26 for these FFD program elements under the modified 
programs would: (1) Ensure that individuals who are subject to the 
program understand their responsibilities; (2) provide for the 
detection and deterrence of drug and alcohol abuse; (3) protect the 
privacy of personal information that may be collected under part 26; 
(4) ensure the integrity of the drug and alcohol testing performed 
under the modified program; and (5) meet the NRC's need for certain 
information to monitor the ongoing effectiveness of the modified 
programs.
    Specific requirements would also be added for granting unescorted 
access to construction sites under a modified FFD program. The added 
requirements would be similar to the requirements in proposed subpart C 
for granting and maintaining authorization under the full FFD program 
that are contained, including requirements for obtaining a self-
disclosure and employment history in proposed Sec.  26.61, conducting a 
suitable inquiry in proposed Sec.  26.63, and performing pre-access 
drug and alcohol testing in proposed Sec.  26.65. The NRC believes that 
the same stringent requirements as proposed for granting authorization 
to a nuclear power plant protected area should be applied in granting 
unescorted access to a construction site to ensure that individuals are 
trustworthy and reliable, as demonstrated by the avoidance of substance 
abuse.
    Individuals who are applying for unescorted access to a 
construction site under the modified FFD program would be subject to 
pre-access testing before they could be granted unescorted access to a 
construction site in more circumstances than under the full FFD 
program, particularly with respect to reinstating individuals' 
unescorted access to a construction site after a short absence from the 
site during which they were not subject to behavioral observation. Pre-
access testing would be required in more circumstances under the 
modified FFD program because the modified program would not require 
random testing. Licensees and other entities that implement a modified 
program would be permitted to grant unescorted access to a construction 
site without pre-access testing only if (1) the individual previously 
held authorization and had been subject to both a drug and alcohol 
testing program that included random testing and to a behavioral 
observation and arrest-reporting program that met part 26 requirements 
from the date on which the individual's last authorization was 
terminated through the date upon which the individual would be granted 
unescorted access to the construction site, or (2) the licensee or 
other entity relies on negative results from drug and alcohol tests 
conducted before the individual applied for unescorted access to the 
construction site, as permitted under proposed Sec.  26.65(b), and the 
individual remained subject to a behavioral observation and arrest-
reporting program that met part 26 requirements, beginning on the date 
on which the drug and alcohol testing was conducted through the date on 
which the individual is granted unescorted access to a construction 
site and thereafter.
    The extent to which licensees and other entities could accept and 
rely on elements of the modified FFD program to meet the requirements 
for granting authorization in proposed subpart C would also be more 
limited than the extent to which the proposed rule would permit them to 
rely on other, full FFD programs. For example, if an individual who had 
unescorted access to a construction site had a positive drug test 
result that was confirmed by an NRC under the modified program, and if 
the FFD violation was reviewed and resolved without a determination of 
fitness by a substance abuse expert (as would be permitted under the 
modified program, but would be required for a full FFD program under 
proposed Sec.  26.187), then a licensee who is seeking to grant the 
individual unescorted access to a nuclear power plant protected area 
could not do so without ensuring that a substance abuse expert made a 
determination of fitness in accordance with proposed Sec.  26.189. In 
addition, because an individual who was subject to a modified FFD 
program would not have received any FFD training, a licensee who was 
seeking to grant unescorted access to the individual would be required 
to ensure that the individual received the required training before 
granting unescorted access to the protected area of a nuclear power 
plant.
    The reciprocity between full FFD programs described in proposed 
Sec.  26.53(d) would also be permitted between modified FFD programs. 
However, licensees and other entities would not be permitted to rely on 
program elements from a modified FFD program when granting 
authorization, except if the modified FFD program elements fully 
complied with the specific requirements in proposed part 26 for that 
element.
    There would be several FFD program elements in the modified program 
that licensees and other entities would be permitted to develop and 
implement on the basis of the circumstances at their specific 
construction site. These program elements would not be required to 
fully comply with the specific requirements for each program element in 
proposed part 26, as follows:
    Modified FFD programs would be required to have procedures that 
describe the process to be followed if an individual's behavior raises 
a concern regarding the possible use, sale, or possession of illegal 
drugs on or off site, the possible possession or consumption of alcohol 
on site, or impairment from any cause which in any way could adversely 
affect the individual's ability to safely and competently perform his 
or her duties, but the modified program would not be required to comply 
with the specific requirements in proposed Sec.  26.77 for management 
actions regarding possible impairment.
    Modified FFD programs would also be required to establish sanctions 
for FFD policy violations that, at a minimum, would prohibit the 
individual from having access to or performing any job duties at the 
construction site until the licensee or other entity determined that 
the individual's behavior would not pose a risk to public health and 
safety or the common defense and security. However, the modified 
programs would not be required to implement the

[[Page 13785]]

minimum requirements for sanctions in proposed Sec.  26.75 or apply the 
specific procedures for conducting a determination of fitness in 
proposed Sec.  26.189.
    Modified FFD programs would be required to have procedures for 
determining and tracking individuals' identities and maintaining 
records in a manner that would enable the program to function, but 
would not be required to meet the specific recordkeeping requirements 
in proposed Sec.  26.213.
    Modified FFD programs would be required to provide for an objective 
and impartial review of the facts related to a determination that an 
individual had violated the FFD policy, but would not be required to 
meet the specific requirements in proposed Sec.  26.39 for a review 
process for FFD violations.
    Modified FFD programs would also be required to conduct audits to 
assure the continuing effectiveness of the FFD program, including FFD 
program elements that would be provided by C/Vs, the FFD programs of 
any C/Vs that would be accepted by the licensee or other entity, and 
the programs of the HHS-certified laboratories on which the licensee or 
other entity and its C/Vs would rely. The modified FFD program would be 
audited at a frequency that would assure its continuing effectiveness 
and corrective actions would be required to resolve any problems 
identified. Licensees and other entities that implemented modified FFD 
programs would also be permitted to jointly conduct audits, or accept 
audits of C/Vs and HHS-certified laboratories by other licensees and 
entities that are subject to part 26. However, modified FFD programs 
would not be required to meet the specific requirements in proposed 
Sec.  26.41 for the audits and corrective actions required for a full 
FFD program. In addition, audits would be required to verify the 
honesty and integrity of FFD program personnel, but modified FFD 
programs would not be required to meet the specific requirements in 
proposed Sec.  26.31(b).
    Licensees and other entities would also be permitted, at their 
discretion, to implement full FFD programs to which all individuals 
with unescorted access to a construction site would be subject. Or they 
may choose to implement all of the specific requirements for any FFD 
program element required under part 26 or, at their discretion, a 
subset of program elements. However, if a licensee or other entity 
chose to implement one of the modified FFD program elements listed 
above that did not fully comply with the specific requirements for that 
element in proposed part 26, the NRC would require the licensee or 
other entity to submit its modified FFD program plans to the NRC for 
review and approval as part of the COL review process. These plans 
would then become part of the COL. The NRC believes that the 
flexibility to implement modified FFD program elements would eliminate 
undue restrictions on construction site activities while assuring that 
individuals who have unescorted access to construction sites are fit 
for duty and trustworthy and reliable, as demonstrated by the avoidance 
of substance abuse.

Full FFD Requirements for Certain Individuals With Unescorted Access to 
a Construction Site

    A second tier of requirements, the full FFD program, would apply to 
individuals who are granted unescorted access to a construction site 
and who perform the following job duties: (1) Supervise construction 
activities at the site; (2) perform security duties as an armed 
security force officer, alarm station operator, response team leader, 
or watchperson for the construction site; (3) serve as an escort at the 
construction site for visitors (i.e., individuals who are not 
performing construction activities at the site or who will be 
performing construction activities but will be present on site for 5 
days or fewer in a year); or (4) serve as a reviewing official to grant 
or deny unescorted access to the construction site. The individuals who 
perform these job duties will have frequent opportunities to conduct 
behavioral observation of construction workers who have unescorted 
access to the construction site, as well as visitors to the site. They 
would therefore be in a position to detect behavior that may indicate 
impairment, and to detect and deter other undesirable conditions or 
actions. However, it would be necessary to ensure that the individuals 
in these job duties are trained in behavioral observation. In addition, 
the individuals who perform these job duties would have important 
responsibilities for assuring that work is performed correctly and that 
construction site security is maintained. Therefore, the NRC believes 
it would be necessary to ensure that individuals who perform these job 
duties are subject to a full FFD program, including random testing. 
However, to reduce the logistical impact of the random testing 
requirement, licensees and other entities would not be required to 
establish specimen collection facilities at a `greenfield' site, for 
example, but would be permitted to have these individuals tested at a 
local hospital or other facility in accordance with the requirements of 
49 CFR part 40, ``Procedures for Department of Transportation Workplace 
Drug and Alcohol Testing Programs'' (65 FR 1944, August 9, 2001).

Specific Thoughts About FFD Requirements for Construction Sites

    1. Under a modified FFD program, individuals who have unescorted 
access to a construction site would not be subject to random drug and 
alcohol testing. The purpose of random testing is to deter and detect 
substance abuse. However, these individuals would be subject to 
behavioral observation from supervisors and security personnel at the 
site and for-cause drug and alcohol testing if any indications of 
altered behavior are observed. A review of FFD program performance 
data, which licensees and other entities are required to report to the 
NRC under the current and proposed rules, indicates that short-term 
contractors have consistently had higher rates of positive drug and 
alcohol test results than long-term contractors and licensee employees. 
The NRC believes that the majority of construction site personnel will 
be contractor/vendor, rather than licensee, personnel.
    2. Under a modified FFD program, licensees and other entities would 
be required to provide the FFD policy statement to individuals who are 
subject to the modified program, rather than making the policy 
statement ``readily available,'' as permitted in proposed Sec.  
26.27(b). The requirement to ``provide'' the policy statement to 
affected individuals would be necessary to ensure that these 
individuals are aware of what is expected of them and what consequences 
may result from a lack of adherence to the policy. The policy statement 
would be the only means by which individuals would be informed of their 
responsibilities under the modified program because they would not 
receive FFD training.
    3. The modified FFD program under consideration would not require 
the determination of fitness process specified in proposed Sec.  26.189 
to be performed by a substance abuse expert in proposed Sec.  26.187. 
The modified program also would not establish requirements for followup 
testing if an individual had violated the FFD policy. The modified 
program would not include these requirements because of past experience 
with how licensees and other entities respond to FFD policy violations 
for C/V personnel. That is, the NRC expects that licensees and other 
entities will terminate the unescorted access of any individual who has 
violated the FFD policy and

[[Page 13786]]

deny them further access to a construction site, because, in many 
cases, the skills of short-term C/V personnel are easily replaced. If a 
licensee or other entity sought to grant, maintain, or reinstate 
unescorted access to an individual who had violated the FFD policy, the 
modified FFD program would require the licensee or other entity to 
determine that the individual's behavior does not pose a risk to public 
health and safety or the common defense and security, but would not 
specify the process to be followed to achieve this goal.
    4. The NRC is also seeking comment on the scope of the job duty 
groups who would be subject to the second tier of more stringent 
requirements (i.e., a full FFD program). That is, are there job duty 
groups, other than supervisors, escorts, security personnel, and 
reviewing officials, whose activities could pose a sufficient risk to 
public health and safety or the common defense and security that 
subjecting them to the full FFD program is warranted?
    5. The NRC is also considering excluding holders of manufacturing 
licenses (under proposed part 52 of 10 CFR) from FFD requirements at 
this time. These potential licensees may not be constructing reactors 
at the same fixed sites at which the reactors would be installed and 
their construction activities may occur elsewhere. Therefore, the NRC 
believes that additional study of the circumstances of these potential 
licensees is warranted.
    6. As discussed above, the modified FFD program under consideration 
retains specific requirements for some FFD program elements, eliminates 
requirements for some program elements, and establishes general 
performance objectives for other program elements without establishing 
specific requirements. There may be other mixes of general and specific 
requirements that could be applied to FFD programs at construction 
sites that would provide adequate assurance of public health and safety 
and the common defense and security, commensurate with the potential 
risks of construction site activities.

Subpart I--Fatigue Management

    In response to the publication of the Proposed Part 26 rulemaking 
for public comment (70 FR 50442, August 26, 2005), the NRC received 
many comments from stakeholders regarding Subpart I, Fatigue 
Management. The full text of these comments is available at http://ruleforum.llnl.gov/cgi-bin/rulemake?source=Part26_risk&st=prule. 
Requirements that were the subject of substantive comment include: (1) 
The proposed requirement for individuals to have at least one 24-hour 
break in any 7-day period (Sec.  26.199(d)(2)(ii)), (2) the proposed 
requirement for individuals to have at least one 48-hour break in any 
14-day period (Sec.  26.199(d)(2)(iii)), and (3) the proposed 
requirement for collective work hour limits (Sec.  26.199(f)). Although 
many comments supported these provisions, a number of comments 
expressed concerns regarding the potential unintended consequences, 
necessity, or effectiveness of these requirements.
    Several stakeholders commented that the proposed requirement for 
individuals to have at least one 24-hour break in any 7-day period 
would not provide the flexibility necessary for licensees to 
effectively schedule 8-hour shifts (many licensees currently use a 
schedule that includes periods of 7 consecutive 8-hour shifts). 
Regarding the requirement for individuals to have at least one 48-hour 
break in any 14-day period, several stakeholders expressed concern 
about the potential effect of this requirement on the ability of 
licensees to provide adequate coverage for unplanned maintenance (e.g., 
to quickly restore inoperable equipment). Other stakeholders commented 
that a 48-hour break during a series of night shifts would adversely 
affect an individual's circadian adjustment of individuals to the night 
shift. Several stakeholders commented that the collective work hour 
limits were unnecessary because they were redundant with other 
requirements whereas other stakeholders expressed the concern that the 
collective work hour limits were not adequate because they did not 
address worker fatigue on an individual basis. Additional comments 
concerning collective work hour limits included the concern that 
collective work hour calculations were susceptible to manipulation and 
that the maximum 8-week period of exemption from the collective work 
hour limits would not be adequate for certain longer term outages.
    The NRC believes the concerns described above may be largely 
addressed through alternative requirements that would be equally 
effective in meeting the objectives of the rulemaking. To address 
stakeholder comment regarding the proposed minimum break requirements 
and collective work hour controls, the staff is considering the 
following concept for amending the proposed fatigue management 
provisions.

Proposed Resolution of Comments Concerning Minimum Break Requirements 
and Collective Work Hour Controls

    Delete the following provisions from the proposed rulemaking:
     Requirement for a minimum 24-hour break in any 7-day 
period.
     Requirement for a minimum 48-hour break in any 14-day 
period.
     Collective work hour limits.
    Add the following minimum break requirements:

     Individuals subject to work hour controls as described by 
Sec.  26.199(a)(1-5) of the proposed rule would be required to have a 
minimum 36-hour break in any 9-day period. This requirement would be 
applicable whether the plant is operating or in an outage.
     While the plant is operating, individuals subject to work 
hour controls as described by Sec.  26.199(a)(1-5) of the proposed rule 
would be subject to the following break requirements:
    --Individuals working 8 hour shift schedules would be required to 
have a minimum of one 24-hour break per week, averaged over a shift 
cycle.
    --Individuals working 10 hour shift schedules would be required to 
have a minimum of two 24-hour breaks per week, averaged over a shift 
cycle.
    --Individuals working 12 hour shift schedules would be required to 
have a minimum of three 24-hour breaks per week, averaged over a shift 
cycle.

     During the first 60 days of a plant outage, individuals 
subject to work hour controls as described by Sec.  26.199(a)(1-4) of 
the proposed rule would be required to have a minimum of three 24-hour 
breaks in each successive (i.e., non-rolling) 15-day period.
     During the first 60 days of a plant outage, security 
outage, or increased threat condition, individuals subject to work hour 
controls as described by Sec.  26.199(a)(5) of the proposed rule would 
be required to have a minimum of four 24-hour breaks in each successive 
(i.e., non-rolling) 15-day period.
     Beginning day 61 of a plant outage, security outage, or 
increased threat condition, individuals subject to work hour controls 
as described by Sec.  26.199(a)(1-5) of the proposed rule would be 
subject to the controls applicable to an operating plant, except as 
follows:
--The maximum 60 day period for application of outage or increased 
threat condition limits could be extended 7 days for an individual or

[[Page 13787]]

group of individuals for each independent 7 day period the individual 
or group works not more than 48 hours during the outage or increased 
threat condition.

Implementation Details

    For purposes of compliance with the minimum 24-hour break 
requirements:
     Because work schedules may contain shifts of more than one 
length (e.g., combinations of 8 and 12-hour shifts), shift schedules 
would be defined as follows:
    [rtrif] 8-hour shift schedules average not more than 9 hours per 
day.
    [rtrif] 10-hour shift schedule average not more than 11 hours per 
day.
    [rtrif] 12-hour shift schedule average not more than 12 hours per 
day.
     Only break periods of 24 consecutive hours or more would 
count towards the break requirements.
     Breaks would be counted in 24-hour increments. For 
example, a 36 hour break would count as one 24-hour break. A break of 
48 consecutive hours would count as two 24-hour breaks.
     The maximum duration of a shift cycle over which a 
licensee would be able to average breaks would be limited to six weeks.
     Any portion of a plant outage, security outage, or 
increased threat condition that does not comprise a complete 15 day 
period would be subject to the individual work hour limits in proposed 
Sec.  26.199(d)(1), Sec.  26.199(d)(1)(I), and the requirement 
described above for a minimum 36-hour break in any 9-day period.

    Dated at Rockville, Maryland, this 10th day of March, 2006.

    For the Nuclear Regulatory Commission.
Eileen McKenna,
Chief, Financial, Policy and Rulemaking Program, Division of Policy and 
Rulemaking, Office of Nuclear Reactor Regulation.
[FR Doc. E6-3922 Filed 3-16-06; 8:45 am]
BILLING CODE 7590-01-P