[Federal Register Volume 74, Number 147 (Monday, August 3, 2009)]
[Rules and Regulations]
[Pages 38326-38328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18364]


=======================================================================
-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

10 CFR Part 26

[NRC-2002-0002]
RIN 3150-AF12


Fitness for Duty Programs

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule; correcting amendment.

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

SUMMARY: This document corrects a final rule appearing in the Federal 
Register on March 31, 2008 (73 FR 16965), that amended the Nuclear 
Regulatory Commission's (NRC's) regulations that govern fitness for 
duty programs. This document is necessary to correct erroneous language 
in the preamble and codified language of the final rule. These 
corrections include fixing typographical errors and cross-references, 
revising language in the preamble to clarify unintended discrepancies 
with the codified rule text, and making non-substantive changes to the 
rule text that do not modify any requirements in the final rule.

DATES: The correction is effective August 3, 2009, and is retroactively 
applicable to March 31, 2008.

FOR FURTHER INFORMATION CONTACT: Lynn Hall, Office of Nuclear Reactor

[[Page 38327]]

Regulation, U.S. Nuclear Regulatory Commission, telephone 301-415-3759, 
e-mail: [email protected].

ADDRESSES: Documents related to this correction can be publicly 
accessed using the following methods:
    Federal e-Rulemaking Portal: Go to http://www.regulations.gov and 
search for documents filed under Docket ID [NRC-2002-0002]. Address 
questions about NRC dockets to Carol Gallagher 301-492-3668; e-mail: 
[email protected].
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Public 
File Area O F21, 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 1-899-397-4209, 301-415-4737, or by e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: This document corrects erroneous language to 
the preamble and codified language of the Part 26 final rule published 
on March 31, 2008 (73 FR 16965). Also, as published, the final 
regulations contain errors which may prove to be misleading and need to 
be clarified. The following corrects the preamble to the March 31, 2008 
document.
    1. On page 16972, third column, in the second paragraph, the second 
sentence is corrected to read as follows:
    The final rule introduces the concept of ``authorization'' to Part 
26 to refer to the status of an individual who the licensee or other 
entity has determined can be trusted to avoid substance abuse, and, 
therefore, may be permitted to have the types of access or perform the 
duties described in Sec.  26.4 [FFD program applicability to categories 
of individuals], as a result of the process described in this subpart.
    2. On page 16983, first column, in the third complete paragraph, 
the second sentence is corrected to read as follows:
    Surveys and expert panels have suggested that tolerance for 
overtime is generally limited to 300-400 hours of overtime per year 
(ADAMS Accession No. ML090850025); (NUREG/CR-4248).
    3. On page 17002, third column, in the second complete paragraph, 
the first sentence is corrected to read as follows:
    Section 26.4(g) of the final rule amends the proposed rule to 
clarify the requirements that the FFD program personnel specified in 
this paragraph must meet.
    4. On page 17007, first column, the complete sentence beginning on 
line 15 is corrected to read as follows:
    The definition explicitly states the criterion that the term 
``directing'' refers to an individual who is ``directly involved in the 
execution of the work activity'' and either ``is ultimately responsible 
for the correct performance of that work activity'' as opposed to, for 
example, the planning, development or scheduling of the activity, or 
whose technical input does not receive ``subsequent technical review.''
    5. On page 17030, third column, in the first complete paragraph, 
the first sentence is corrected to read as follows:
    The NRC has added Sec.  26.41(d)(2) to ensure that licensees' and 
other entities' contracts with C/Vs and HHS-certified laboratories 
permit the licensee or other entity to obtain copies of and take away 
any documents that auditors may need to assure that the C/V, its 
subcontractors, or the HHS-certified laboratory are performing their 
functions properly and that staff and procedures meet applicable 
requirements.
    6. On page 17086, third column, in the second complete paragraph, 
the first sentence is corrected to read as follows:
    Section 26.137(d)(5) requires that one of the quality control 
samples included in each analytical run must appear to be a donor 
specimen to licensee testing facility technicians.
    7. On page 17088, second column, in the second complete paragraph, 
the fourth sentence is corrected to read as follows:
    Section 26.137(e)(6)(v) requires that one sample must appear to be 
a donor sample to the licensee testing facility technicians.
    8. On page 17092, first column, in the second complete paragraph, 
the third sentence is corrected to read as follows:
    The cross-reference to former Sec.  26.29 has been updated to 
reference Sec.  26.37 in the final rule.
    9. On page 17117, first column, in the second complete paragraph, 
the third sentence is corrected to read as follows:
    Therefore, Sec.  26.189(a)(1) through (a)(5) provides examples of 
the healthcare professionals who are qualified to address various 
fitness issues that may arise in an FFD program.
    10. On page 17138, first column, the third complete sentence 
beginning on line 15 is corrected to read as follows:
    If at any time during a unit outage an individual performs duties 
specified in Sec.  26.4(a)(1) through (a)(4) on or for a unit that is 
not disconnected from the electrical grid, the individual is subject to 
the minimum day off requirements of Sec.  26.205(d)(3) while the 
individual is performing those duties.

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.


0
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. 552 and 553; the NRC is adopting the 
following amendments to 10 CFR part 26.

PART 26--FITNESS FOR DUTY PROGRAMS

0
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).


0
2. In Sec.  26.31, paragraphs (c)(4), (c)(5), and (d)(1) introductory 
text are revised to read as follows:


Sec.  26.31  Drug and alcohol testing.

* * * * *
    (c) * * *
    (4) Follow-up. As part of a follow-up plan to verify an 
individual's continued abstinence from substance abuse; and
    (5) Random. On a statistically random and unannounced basis, so 
that all individuals in the population subject to testing have an equal 
probability of being selected and tested.
    (d) General requirements for drug and alcohol testing--(1) 
Substances tested. At a minimum, licensees and other entities shall 
test for marijuana metabolite, cocaine metabolite, opiates (codeine, 
morphine, 6-acetylmorphine), amphetamines (amphetamine, 
methamphetamine), phencyclidine, adulterants, and alcohol.
* * * * *

0
3. In Sec.  26.41, paragraph (d)(1) is revised to read as follows:

[[Page 38328]]

Sec.  26.41  Audits and corrective action.

* * * * *
    (d) * * *
    (1) The contracts of licensees and other entities with C/Vs and 
HHS-certified laboratories must reserve the right to audit the C/V, the 
C/V's subcontractors providing FFD program services, and the HHS-
certified laboratories at any time, including at unannounced times, as 
well as to review all information and documentation that is reasonably 
relevant to the audits.
* * * * *

0
4. In Sec.  26.69, paragraphs (c)(3) and (d)(2) are revised to read as 
follows:


Sec.  26.69  Authorization with potentially disqualifying fitness-for-
duty information.

* * * * *
    (c) * * *
    (3) If the designated reviewing official determines that a 
determination of fitness is required, verify that a professional with 
the appropriate qualifications, as specified in Sec.  26.189(a), has 
indicated that the individual is fit to safely and competently perform 
his or her duties;
* * * * *
    (d) * * *
    (2) If the designated reviewing official concludes that a 
determination of fitness is required, verify that a professional with 
the appropriate qualifications, as specified in Sec.  26.189(a), has 
indicated that the individual is fit to safely and competently perform 
his or her duties; and
* * * * *

0
5. In Sec.  26.137, paragraphs (d)(2)(i), (d)(5), and (e)(6)(v) are 
revised to read as follows:


Sec.  26.137  Quality assurance and quality control.

* * * * *
    (d) * * *
    (2) * * *
    (i) Colorimetric pH tests must have a dynamic range of 2 to 12 and 
pH meters must be capable of measuring pH to one decimal place.
* * * * *
    (5) Each analytical run performed to conduct initial validity 
testing shall include at least one quality control sample that appears 
to be a donor specimen to the licensee testing facility technicians.
* * * * *
    (e) * * *
    (6) * * *
    (v) At least one positive control, certified to be positive by an 
HHS-certified laboratory, which appears to be a donor specimen to the 
licensee testing facility technicians.
* * * * *

0
6. In Sec.  26.153, paragraph (f)(3) is revised to read as follows:


Sec.  26.153  Using certified laboratories for testing urine specimens.

* * * * *
    (f) * * *
    (3) The laboratory shall maintain test records in confidence, 
consistent with the requirements of Sec.  26.37, and use them with the 
highest regard for individual privacy.
* * * * *

    Dated at Rockville, Maryland, this 27th day of July 2009.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E9-18364 Filed 7-31-09; 8:45 am]
BILLING CODE 7590-01-P