[Federal Register Volume 76, Number 140 (Thursday, July 21, 2011)]
[Rules and Regulations]
[Pages 43534-43549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18395]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 26
[NRC-2011-0058]
RIN 3150-AI94
Alternative to Minimum Days Off Requirements
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission)
is amending its regulations governing the fitness for duty of workers
at nuclear power plants. These amendments allow holders of nuclear
power plant operating licenses the option to use a different method
from the one already prescribed in the NRC's regulations for
determining when certain nuclear power plant workers must be afforded
time off from work to ensure that such workers are not impaired due to
cumulative fatigue caused by work schedules.
DATES: Effective Date: This final rule is effective August 22, 2011.
ADDRESSES: You can access publicly available documents related to this
document using the following methods:
Federal rulemaking Web site: Go to http://www.regulations.gov/ and search for documents filed under Docket ID
NRC-2011-0058. Address questions about NRC dockets to Carol Gallagher,
telephone: 301-492-3668, e-mail: [email protected].
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-1F21, One White Flint North, 11555 Rockville
Pike, Rockville, Maryland 20852.
NRC's Agencywide Documents Access and Management System
(ADAMS): Publicly available documents created or received at the NRC
are available online in the NRC Library 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 the NRC's public documents. If
you do not have access to ADAMS or if there are problems in accessing
the documents located in ADAMS, contact the NRC's PDR reference staff
at 1-800-397-4209, or 301-415-4737, or by e-mail to
[email protected].
FOR FURTHER INFORMATION CONTACT: Howard Benowitz, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555;
telephone: 301-415-4060; e-mail:
[email protected]mailto:[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. NRC's Fitness for Duty Regulations
B. Stakeholder Reaction to the Fitness for Duty Requirements
C. Public Meetings and Commission Direction
II. Public Input to the Final Rule
III. Description of the Final Rule
A. Maximum Weekly Average of 54 Hours Worked Over a 6-Week
Averaging Period That Advances on a Weekly Basis
B. Alternative to the Minimum Days Off Requirements
C. Applicability
IV. Section-by-Section Analysis
V. Availability of Documents
VI. Criminal Penalties
VII. Compatibility of Agreement State Regulations
VIII. Assessment of Federal Regulations and Policies on Families
IX. Voluntary Consensus Standards
X. Finding of No Significant Environmental Impact: Environmental
Assessment
XI. Paperwork Reduction Act Statement
XII. Regulatory Analysis
XIII. Regulatory Flexibility Certification
XIV. Backfit Analysis
XV. Congressional Review Act
I. Background
A. NRC's Fitness for Duty Regulations
On March 31, 2008, the NRC promulgated a final rule which
substantially revised its regulations for fitness for duty (FFD) in
Title 10 of the Code of Federal Regulations (10 CFR) part 26 (73 FR
16966; March 31, 2008). The revised regulations updated the NRC's FFD
requirements and made them more consistent with other relevant Federal
rules, guidelines, and drug and alcohol testing programs that impose
similar requirements on the private sector.
In addition, by establishing clear and enforceable requirements for
the management of worker fatigue, the 2008 amendments require nuclear
power plant licensees to ensure that worker fatigue does not adversely
affect public health and safety and the common defense and security.
Among these fatigue management requirements is a minimum days off
requirement, which requires licensees to manage cumulative fatigue by
providing workers with a minimum number of days off over the course of
a period not to exceed 6 weeks.
B. Stakeholder Reaction to the Fitness for Duty Requirements
On September 3, 2010, the Nuclear Energy Institute (NEI) submitted
a
[[Page 43535]]
petition for rulemaking (PRM-26-5). In PRM-26-5, the NEI stated that
the ``new rule has resulted in consequences not originally envisioned
when the rule was developed'' and that ``[t]hese consequences have
diminished the safety benefits of the rule.'' The NEI stated that the
unintended consequences stem from the minimum days off requirements,
specifically Sec. 26.205(d)(3) through Sec. 26.205(d)(6), because
they created an undue level of complexity and inflexibility in managing
worker fatigue. These regulations mandated a specified minimum average
number of days off per week, averaged over a fixed time period. The
minimum average number of days off depended on the duties the
individual performed and, for Sec. 26.205(d)(3), the length of an
individual's shift schedule (i.e., whether the individual was working
8-, 10- or 12-hour shifts).
The NEI requested, among other changes, that 10 CFR Part 26,
Subpart I, be amended to replace the minimum days off requirements in
Sec. 26.205(d) with a performance-based objective, consisting of an
average of 54 hours worked per week, averaged over a calendar quarter.
The NEI also proposed changing the Sec. 26.205(e)(1) annual assessment
of actual hours worked and performance of individuals subject to the
work hour controls to a quarterly assessment to provide a more frequent
review of hours worked. The NEI proposed to eliminate the minimum days
off requirements in Sec. 26.205(d)(3) through Sec. 26.205(d)(6),
while the work hour limits and break requirements in Sec.
26.205(d)(1)(i)-(iii) and (d)(2)(i)-(ii), respectively, would remain
unchanged.
Separately from PRM-26-5, on September 23, 2010, the NEI submitted
a request for enforcement discretion regarding the minimum days off
provisions of 10 CFR Part 26. The request reiterated the NEI's opinion
that the regulations that govern fatigue management impeded ``many
safety-beneficial practices at plant sites, adversely [impact] the
quality of life of covered workers, and [result] in conflicts between
rule requirements and represented bargaining unit agreements.'' The
letter requested that the NRC ``exercise enforcement discretion from
the [minimum days off] provisions of the rule'' until the final
disposition of PRM-26-5.
Mr. Erik Erb, a nuclear security officer at the Nine Mile Point
Nuclear Station, submitted a petition for rulemaking (PRM-26-6) on
August 17, 2010. Mr. Erb requested that the NRC amend 10 CFR Part 26,
Subpart I, to decrease the minimum days off requirement for security
officers working 12-hour shifts from an average of 3 days per week to
an average of 2.5 or 2 days per week. This petition was endorsed by 91
security officers.
C. Public Meetings and Commission Direction
The NRC held a public meeting on November 18, 2010, to learn,
directly from the affected stakeholders, more details about the
unintended consequences of the minimum days off requirements. Although
some of the stakeholders were comfortable with the minimum days off
requirements in the 2008 final rule, the stakeholders at this public
meeting claimed that the unintended consequences had diminished the
safety benefits of the fatigue management provisions of 10 CFR part 26
and expressed the need for an alternative that was simpler and would
provide greater scheduling flexibility. Additional public meetings were
held on January 6, 2011, and January 25, 2011, to provide opportunities
for stakeholders and the NRC staff to discuss alternatives to the
minimum days off requirements.
In a February 8, 2011, public meeting, the NRC staff and
stakeholders briefed the Commission on the implementation of the 10 CFR
Part 26 fatigue management requirements. The nuclear power industry
stakeholders conveyed many of the same concerns raised in the three
public meetings. The NRC staff presented the scientific and technical
bases for the requirements for managing cumulative fatigue and a
proposal to address the concerns raised by the industry stakeholders.
The NRC staff proposed a maximum average 54-hour work week, averaged
over a 6-week rolling period, as an alternative to the Sec.
26.205(d)(3) minimum days off requirements. The NRC staff and industry
stakeholders generally agreed that this proposal could provide the
relief sought by the industry while meeting the objectives of the
minimum days off requirements. Other stakeholders were less certain
that the NRC should consider proposals to change the requirements.
On March 24, 2011, the Commission issued a Staff Requirements
Memorandum (SRM) that directed the NRC staff to conduct a rulemaking to
provide an alternative to the minimum days off requirements that would
be consistent with the proposal presented by the NRC staff at the
February 8, 2011, briefing. The Commission limited the scope of the
rulemaking to the alternative to the minimum days off requirements and
instructed the NRC staff to consider the following in a separate
rulemaking effort: (1) Other issues related to the petitions for
rulemaking, (2) other changes to 10 CFR part 26, and (3) comments
received in this rulemaking proceeding that are outside the limited
scope of this rulemaking. The Commission also directed the staff to
expedite this rulemaking and provide a 30-day public comment period for
the proposed rule instead of the typical 75-day public comment period.
On April 25, 2011, consistent with the March 24, 2011, SRM, the NRC
revised its Enforcement Policy to include an interim provision allowing
licensees enforcement discretion for violations of Sec. 26.205(d)(3)
if the licensees implement an alternative approach to the minimum days
off requirements (76 FR 22802). This alternative approach limits an
individual's number of hours worked to a weekly average of 54 hours,
calculated using a rolling window of up to 6 weeks. The enforcement
discretion remains in place until the effective date of this final
rule.
The NRC held public meetings on April 27, 2011, May 11, 2011, June
1, 2011, and June 23, 2011, to discuss implementation guidance for an
alternative to the minimum days off requirements.
On May 16, 2011, consistent with the March 24, 2011, SRM, the NRC
published notices that it would consider the issues raised in PRM-26-5
and PRM-26-6 in the planned ``Quality Control/Quality Verification''
rulemaking (Docket ID NRC-2009-0090) (76 FR 28191-28193).
II. Public Input to the Final Rule
The NRC issued a proposed rule on April 26, 2011, to amend 10 CFR
Part 26 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 proposed rule would have permitted
licensees to maintain individuals' work hours at or below a weekly
average of 54 work hours, calculated using a rolling period of up to 6
weeks, which would roll by no more than 7 consecutive calendar days at
any time. On May 3, 2011, the NRC published a correction in the Federal
Register to correct a typographical error in a Web site address that
had appeared in the proposed rule (76 FR 24831). The public comment
period closed on May 26, 2011.
The NRC received submittals from 10 commenters, which included 25
separate comments. Seven of the commenters supported the proposed
rule's concept of providing the alternative method of managing
[[Page 43536]]
cumulative fatigue that would be simpler and more flexible to implement
than the minimum days off requirements. These seven commenters included
Mr. Erb, the Union of Concerned Scientists (UCS), and the NEI, with
endorsements from Dominion Resources Services, Inc., Entergy
Operations, Inc. and Entergy Nuclear Operations, Inc., Arizona Public
Service Company (APS), and the Tennessee Valley Authority. Although it
supported the comments submitted by the NEI, the APS submitted
additional comments concerning implementation of the alternative and
minimum days off requirements. Another commenter, Mr. Larry Lawson, a
nuclear power plant reactor operator, objected to the proposed rule.
Two individuals, Mr. Harry Sloan and Mr. Mark Callahan, provided
comments that were primarily outside the limited scope of this
rulemaking.
Comments from the UCS indicate that one reason it supports the
alternative is that, unlike the minimum days off requirements, the
alternative would apply the same requirement to all workers subject to
the work hour controls, without regard to their specific duties. The
UCS remarked that this approach is supported by science, in contrast to
the minimum days off requirements, which apply to individuals based on
their duties and the length of their shift schedules.
Notwithstanding that the UCS supports the proposed rule as written,
the NRC disagrees with the position in the comment that the minimum
days off requirements are not supported by science. The intent of both
of the minimum days off and alternative requirements is to manage
cumulative fatigue. As explained in section III.A of this document, one
method of managing cumulative fatigue is to require that an individual
have a minimum number of days off from work. The Statement of
Considerations (SOC) for the 2008 10 CFR Part 26 final rule provides
the scientific basis for these requirements. The 2008 SOC describes why
the number of days off each individual must have depends, in part, on
their duties and the length of their shifts.
Another method of managing cumulative fatigue is to limit the
number of hours an individual works, which indirectly imposes days off.
The alternative provided by this final rule offers this method. This
approach provides a level of assurance of the management of cumulative
fatigue that is comparable to the minimum days off requirements.
Although individuals who perform certain duties, such as security
personnel, could work more hours in a 6-week period under the
alternative as compared to the minimum days off requirements, the
potential for fatigue that could result from the increased hours should
be offset by anticipated reductions in fatigue that will result from
using an averaging period that advances by one week increments rather
than by non-overlapping shift cycles. As noted elsewhere in this
document, an averaging period that incrementally advances on a regular
basis reduces the potential for front-loading and backloading
successive weeks of long work hours. In addition, the alternative
provides more flexibility for licensees to manage work hour schedules,
thereby reducing the potential for fatigue caused by scheduling
constraints. Implementing the alternative also reduces the
administrative burden on licensees by having only one set of
requirements for all covered workers.
The availability of the alternative does not diminish or call into
question the efficacy of the minimum days off requirements. The
implementation of either approach provides reasonable assurance that
individuals will not be impaired due to cumulative fatigue.
Specific Request for Comments
In the proposed rule's SOC, the NRC sought comments and supporting
rationale from the public on the following issue: Would the alternative
approach provide assurance of the management of cumulative fatigue
comparable to the current minimum days off requirements? Two
commenters, Mr. Erb and the UCS, agreed that the alternative
requirements would provide assurance that licensees could manage
cumulative fatigue at a level that is comparable to the assurance
provided by the minimum days off requirements. Mr. Erb also said that
the alternative would help to alleviate the unintended consequences
caused by the minimum days off requirements.
The NRC agrees with the commenters. As described in section III.A
of this document, the alternative provides licensees with a method for
managing cumulative fatigue that is different in several ways from the
minimum days off requirements but provides a comparable level of
assurance that covered workers will not be impaired from cumulative
fatigue due to their work schedules. The alternative also should
eliminate the unintended consequences of the minimum days off
requirements by offering a simpler method for computing work hours and
allowing licensees to be more flexible in how they schedule
individuals' work hours.
Although Mr. Lawson did not directly respond to the question
presented in the proposed rule's SOC, he stated that the alternative
would ease the minimum days off restrictions and increase fatigue.
The NRC disagrees that the alternative would relax the cumulative
fatigue management requirements. For the reasons given in section III.A
of this document, the NRC has determined that the alternative approach
provides assurance of the management of cumulative fatigue that is
comparable to assurance provided by the minimum days off requirements.
Other commenters did not address this specific request for comment.
Suggested Changes to the Proposed Rule
The NEI stated that the proposed rule language uses the terms
``rolling period'' and ``rolling window'' interchangeably, and the SOC
for the proposed rule also uses the term ``averaging period,'' when
referring to the 6-week maximum period over which the 54-hour per week
average is to be calculated. The NEI suggested that the NRC use only
the term ``averaging period.''
The NRC agrees with the NEI that the terms are used interchangeably
throughout the proposed rule's SOC but notes that the proposed rule
language uses ``averaging period'' and ``rolling period.'' The NRC
agrees that, to ensure clarity, one term should be used when referring
to the 6-week maximum period over which the 54-hour per week average is
to be calculated. That term is ``averaging period.'' The term
``incremental period'' is used in this document to describe the amount
of time by which a licensee rolls forward, or incrementally advances,
its averaging periods.
The NEI also recommended that the following words in proposed Sec.
26.205(d)(7)(i) be removed: ``which rolls by no more than 7 consecutive
calendar days at any time.'' The NEI contended that those words add a
new requirement that (1) Was not discussed at the February 8, 2011,
Commission briefing; (2) is not based on the technical and regulatory
analysis performed by the NRC staff; (3) is inconsistent with the
minimum days off requirements and its associated guidance, neither of
which stipulates the duration of the rolling increment; and (4) would
be outside the scope of the March 24, 2011, SRM. According to the NEI,
this proposed rule language would result in an unintended consequence
of preventing the rolling periods from being matched to the licensee's
payroll schedules, thereby possibly resulting in rolling schedules
[[Page 43537]]
that are different for each individual worker and unwarranted
complexity.
The NRC agrees in part and disagrees in part with the NEI comments.
The words, ``which rolls by no more than 7 consecutive calendar days at
any time,'' in proposed Sec. 26.205(d)(7)(i), were not discussed at
the February 8, 2011, Commission briefing. However, as noted by the
NEI, the NRC and stakeholders discussed at public meetings how the
averaging periods could be advanced on a weekly basis. The intent of
the rule language in question was to establish the minimum and maximum
periods by which a licensee could advance an averaging period. Thus, a
licensee could advance its averaging period by as little as one day but
by no more than one week, or 7 consecutive calendar days. Although
licensees at the public meetings may have talked about advancing their
averaging periods on a weekly basis, the NRC did not want to limit
licensees' flexibility by requiring 1-week incremental periods.
More importantly, without having an upper limit on the length of
the incremental period, licensees could advance their averaging periods
on a 6-week basis, resulting in fixed 6-week schedules. An approach
requiring a maximum weekly average of 54 work hours using fixed
averaging schedules would allow more consecutive weeks of high levels
of work hours than using averaging schedules that incrementally advance
on a regular basis. Under the former type of schedule, a licensee could
back-load one fixed schedule with long work hour weeks and front-load
the next fixed schedule with long work hour weeks, resulting in several
consecutive excessive work hour weeks and potentially cumulatively-
fatigued individuals. The latter type of schedule limits the number of
hours that can be worked in consecutive weeks because each week's hours
affect the number of hours worked in the other weeks in the averaging
period. By advancing the averaging period on a consistent basis,
licensees must consider the impact of each week's work hours before and
after each incremental advance. The use of fixed averaging schedules
also would be inconsistent with the incrementally advancing averaging
period concept considered in the NRC regulatory basis and with the NRC
staff's statements to the Commission at the February 8, 2011, briefing.
See, e.g., Transcript of February 8, 2011, Commission Briefing on the
Implementation of Part 26, p. 89, lines 4-9.
The NRC agrees with the NEI that use of an incremental period that
is shorter than 7 days could introduce unintended complexity to the
implementation of the alternative. In some cases, such as when an
averaging period ends 4 days before a unit outage is scheduled to
begin, the licensee cannot advance the averaging period by a full
incremental period of 7 days. The proposed rule would have required the
use of an incremental period of less than 7 days. The NRC is revising
the rule language to eliminate the requirement to advance an averaging
period by fewer than 7 calendar days. The final rule requires licensees
to advance averaging periods on a 7-day (i.e., weekly) basis to
preclude scheduling consecutive, excessively long work weeks without
proper restorative rest. Thus, in a 6-week averaging period, once the
averaging period has begun advancing, the incremental period will be 1
week long and will always be the sixth week of that averaging period.
Also, in association with this final rule, the NRC is endorsing
implementation guidance that includes an acceptable method for
addressing averaging periods and incremental periods of less than 7
days in duration.
The NEI identified another unintended consequence of the words,
``which rolls by no more than 7 consecutive calendar days at any
time,'' in proposed Sec. 26.205(d)(7)(i). The definition of a day off
contained in Sec. 26.205(d)(3) states that a day off is a calendar day
in which an individual does not start a work shift. For many licensees,
this definition is used in computer software to count the work hours of
a shift that begins at the end of a calendar day but ends during the
next calendar day, as hours worked on the day the shift started as
opposed to splitting the hours between the two days. The NEI claimed
that the NRC's interpretation of this proposed rule language, as
expressed at the May 11, 2011, public meeting, would impact this
practice and cause an unnecessary change to the industry software.
The NRC agrees with the NEI's comment. At the May 11, 2011, public
meeting, the NRC explained that when a shift begins near the end of a
calendar day that also happens to be the last day of an averaging
period, but that shift ends during the next calendar day (and, thus,
the next averaging period), the proposed rule would have required
licensees to: (1) Count the hours worked on the calendar day that was
the end of the averaging period as hours worked during that averaging
period; and (2) count the hours worked during that same shift but on
the next calendar day as hours worked during the next averaging period.
The NRC has added language to the final rule to clarify that when a
shift starts at the end of a calendar day and concludes during the next
calendar day, a licensee will have the option to consider the hours
worked during that shift as if they were all worked on the day the
shift started or count the hours on the calendar days the hours were
actually worked. The licensee must choose only one option. Because the
number of hours worked in an averaging period is averaged on a weekly
incremental basis, hours counted in one averaging period instead of the
next averaging period will still be taken into account in the weekly
averaging calculation. In addition, this structure will not force upon
licensees an undue burden of using a method for counting hours that is
different from the way licensees currently count hours to determine a
day off to comply with minimum days off requirements.
The NEI also commented that in the fourth paragraph in section
III.C of the proposed rule's SOC, which includes a discussion of the
force-on-force tactical exercise exception, the last sentence is
inconsistent with the proposed rule language and the 2008 final rule.
The NEI suggested that the paragraph should be revised to read:
``exclude from the Sec. 26.205(d)(7) calculations the shifts worked''
instead of ``exclude from the Sec. 26.205(d)(7) calculations the hours
worked.''
The NRC disagrees with this comment. The proposed rule would have
allowed licensees to exclude the hours worked during a force-on-force
exercise because the calculation of average hours worked per week is
computed by dividing the number of hours worked during the averaging
period by the number of weeks in the averaging period. So, when the
licensee excludes the shifts worked during an NRC-evaluated force-on-
force tactical exercise, it is actually excluding the hours in the
shifts when calculating the individual's number of hours worked. No
change was made to the SOC or rule language as a result of this
comment.
The last paragraph in section III.C of the proposed rule's SOC
addresses the applicability of EGM-09-008, ``Enforcement Guidance
Memorandum--Dispositioning Violations of NRC Requirements for Work Hour
Controls Before and Immediately After a Hurricane Emergency
Declaration,'' dated September 24, 2009, to the proposed maximum
average work hours alternative. The NEI requests that this paragraph
include an explanation of whether licensees with exemptions from the
minimum days off requirements could rely on those existing exemptions
if they choose to adopt the maximum average work hours alternative.
[[Page 43538]]
The NRC agrees that the paragraph in question could benefit from
further clarity. A licensee that has already been granted an exemption
from Sec. 26.205(d) before and immediately after a hurricane emergency
declaration can rely on that exemption if it implements the
requirements in the new Sec. 26.205(d)(7). The final rule's SOC is
also revised to provide further explanation of the conditions that must
exist before the NRC staff may exercise enforcement discretion under
EGM-09-008.
The NEI contends that the second sentence in proposed Sec.
26.205(d)(7) is not necessary. That sentence reads: ``Licensees
voluntarily choosing to comply with the alternative maximum average
work hours requirements in this paragraph are not relieved from
complying with all other requirements in Sec. 26.205 other than Sec.
26.205(d)(3).'' The NEI argues that there is nothing stated or implied
in Sec. 26.205(d)(7) that would lead one to conclude that Sec.
26.205(d)(7) provides any relief from complying with all other
requirements in Sec. 26.205 other than those in Sec. 26.205(d)(3).
The NRC agrees with the NEI's comment and has deleted the second
sentence of Sec. 26.205(d)(7) in the final rule, because it is
unnecessary.
The APS commented that although the NRC analysis of the proposed
alternative relied on a licensee's implementation of only the
alternative for all covered workers, the proposed rule language does
not prohibit implementation of both the minimum days off and
alternative requirements at one site. The APS claimed that plant
procedures and management tools have the capacity to implement either
cumulative fatigue management approach. Because both methods are
effective in controlling cumulative fatigue, the APS argued that
licensees should be able to select the method that works best for a
given covered work group. It also claimed that at the Palo Verde
Nuclear Generating Station, not allowing split implementation may have
the effect of delaying restoration of longstanding safety beneficial
practices by approximately one year.
The NRC disagrees that the proposed rule language did not prohibit
implementation of both the minimum days off and alternative
requirements at one site. The APS pointed to the following language in
proposed Sec. 26.205(d)(3) to support its argument: ``Licensees shall
either ensure that individuals have, at a minimum, the number of days
off specified in this paragraph, or comply with the requirements for
maximum average work hours in Sec. 26.205(d)(7)'' (italics added by
the APS). The NRC intends that sentence to convey that licensees shall
either: (1) ensure that individuals have, at a minimum, the number of
days off specified in Sec. 26.205(d)(3) (i.e., the licensee shall
comply with the minimum days off requirements in Sec. 26.205(d)(3));
or (2) comply with the requirements for maximum average work hours in
Sec. 26.205(d)(7). This reading of proposed Sec. 26.205(d)(3), which
focuses on the licensee's obligations, is consistent with the language
of proposed Sec. 26.205(d)(7)(ii), which reads as follows: ``Each
licensee shall state, in its FFD policy and procedures required by
Sec. 26.27 and Sec. 26.203(a) and (b), with which requirements the
licensee is complying: the minimum days off requirements in Sec.
26.205(d)(3) or maximum average work hours requirements in Sec.
26.205(d)(7).'' In both provisions, the licensee must choose which set
of requirements it intends to follow. Thus, the proposed rule language
clearly reflected the NRC's position that each licensee must implement
only one method of managing cumulative fatigue for all of its covered
workers: either the minimum days off requirements or the alternative
requirements. A reading of the proposed rule language would have been
consistent with the interpretation in the APS's comment if the word
``either'' had immediately followed ``individuals'' in the first
sentence of Sec. 26.205(d)(3), so that it read: ``Licensees shall
ensure that individuals either have, at a minimum, the number of days
off specified in this paragraph, or comply with the requirements for
maximum average work hours in Sec. 26.205(d)(7).''
However, the NRC is clarifying the rule language to ensure that all
licensees document, in their FFD policies and procedures, the set of
requirements with which they will comply, without regard to whether
they comply with the minimum days off or the alternative requirements.
The proposed rule could have been read to require licensees to document
their election only if they implemented the alternative. This change to
the final rule results from the APS comment.
The NRC also disagrees that a licensee should be able to implement
the minimum days off requirements and the alternative requirements
simultaneously for different covered groups, even for less than one
year. The NRC's determination that the proposed alternative is
equivalent to the minimum days off requirements considered the
collective advantages and disadvantages of having all individuals who
are subject to the work hour controls under a single set of cumulative
fatigue management requirements. Allowing licensees to implement the
minimum days off and alternative requirements simultaneously would also
create an undue burden for NRC inspectors and undue cost and burden for
licensees. Moreover, during the public meetings and Commission briefing
before the issuance of the proposed rule and in the request for
enforcement discretion, industry stakeholders consistently requested
swift relief from the minimum days off requirements for all covered
workers. The industry stakeholders did not request relief from the
minimum days off requirements for only certain covered groups of
workers. By this final rule, which was produced on an expedited basis
due to the compelling industry stakeholder needs, the NRC is providing
an alternative to the minimum days off requirements for all covered
workers. No change was made to the final rule as a result of this
comment.
Opposition to the Proposed Rule
Mr. Lawson asserted that the work hour controls were issued to
encourage licensees to adequately staff their plants, thereby reducing
the effects of cumulative fatigue on plant operations. He stated that
licensees have not hired more workers and won't hire more workers
unless it is financially beneficial to do so. He argued that the
proposed rule would provide relief from the work hour controls, thus
removing any incentive for licensees to increase staffing.
The NRC disagrees with Mr. Lawson. The work hour controls were
issued in 2008 to ensure against worker fatigue adversely affecting
public health and safety and the common defense and security by
establishing clear and enforceable requirements for the management of
worker fatigue. The NRC requires that licensees comply with the
requirements but does not direct licensees to satisfy these
requirements by any particular means, such as by hiring more workers.
Further, as stated in the SOC for this final rule, the alternative
provides reasonable assurance of the management of cumulative fatigue
that is comparable to the assurance provided by the minimum days off
requirements. In doing so, the alternative does not provide relief from
or relaxation of the minimum days off requirements. No change was made
to the final rule as a result of this comment. Mr. Lawson also
maintained that, as demonstrated by this rulemaking and the shortened
public
[[Page 43539]]
comment period, the NRC seems willing to give the industry whatever it
wants. The NRC disagrees with this comment. At the November 18, 2010,
public meeting, more than 20 individuals, representing maintenance,
operations, and security workers, unions, and vendors, spoke of the
unintended consequences of the minimum days off requirements. These
stakeholders emphasized the industry's inability to continue practices
that licensees consider beneficial, such as promoting continuity in
work crew staffing and the continued development of licensee staff. The
industry representatives further stated that the hours available for
work are sufficient in almost all cases; however, they believe there
should be more flexibility in how the time can be used to help improve
workers' quality of life and lessen the complexity of the rule. The
Commission directed the staff to develop the proposed rule based on the
following: (1) Feedback from industry representatives; (2) information
presented by two petitioners for rulemaking seeking changes to the work
hour controls in 10 CFR 26.205; (3) NEI's request for enforcement
discretion of those same regulatory provisions in 10 CFR 26.205; (4)
evidence gathered from stakeholders at public meetings and the February
8, 2011, Commission briefing; and (5) analysis performed by the NRC
staff and explained in memoranda to the Commission dated January 4,
2011, and February 28, 2011. The NRC also held three public meetings
and one public briefing to the Commission on this issue between
November 2010 and March 2011, thereby offering stakeholders several
opportunities to provide their input. Taken together, all of this
information provided the Commission with a reasonable basis to support
its decision to issue the proposed rule and establish a 30-day comment
period instead of the typical 75-day public comment period. No change
was made to the final rule as a result of this comment.
Mr. Lawson contended that the alternative would allow licensees to
give covered workers only one day off every 17 days, which, he said,
the NRC admits could lead to fatigue. Nevertheless, the NRC proposed to
permit this alternative. Mr. Lawson claimed that a violation of the
alternative approach would result in either a ``minor or non-cited
violation,'' which would not be much of ``a deterrent to the type of
abuse we had during [the period when the only industry-wide direction
was based on Generic Letter 82-12, `Nuclear Power Plant Staff Working
Hours'].''
The NRC agrees in part and disagrees in part with Mr. Lawson's
comments. The alternative allows licensees to create work schedules
that could result in cumulative fatigue. The industry representatives
at the February 8, 2011, Commission briefing illustrated this point
with an example of a schedule of four consecutive weeks of 72-hour work
weeks, the most hours a licensee can schedule in a 7-day period under
the work hour controls. See Transcript of February 8, 2011, Commission
Briefing on the Implementation of Part 26, p. 52, lines 16-18. However,
the industry representatives explained that such a schedule would not
be possible because, in part, shifts would be unmanned. Id. at lines
18-20 and p. 54, lines 10-13. For instance, an individual who is
scheduled to work four consecutive 72-hour work weeks would also need
two weeks of zero work hours during the 6-week averaging periods
containing the four weeks of 72-hour work weeks. Such a schedule would
be improbable for licensees to maintain because plants cannot operate
without proper staffing. Id.
A schedule that provides an individual only 1 day off in 17
consecutive days under the alternative approach could result in
cumulative fatigue. However, to limit an individual's number of days
off to one in a 17-day period and still meet the 54-hour maximum weekly
average, a licensee could not schedule an excessive number of work
hours every week in the averaging periods containing that 17-day
period. The NRC is also endorsing implementation guidance for licensees
that summarizes this concern and reiterates each licensee's obligation
to schedule work hours of covered workers consistent with the objective
of preventing impairment from fatigue due to the duration, frequency,
or sequencing of successive shifts as required by 10 CFR 26.205(c).
Therefore, with the inherent self-limiting nature of a maximum weekly
work hour average schedule, the use of regularly-repeating standard
shift schedules by most licensees, site procedures that reinforce the
requirement to effectively manage fatigue, and the other work hour
controls in Sec. 26.205(d)(1) and (d)(2), the risk of cumulative
fatigue is low under the schedule posited by Mr. Lawson. No change was
made to the final rule as a result of this comment.
Concerning Mr. Lawson's comment comparing the alternative approach
to the work hour controls that existed before the 2008 final rule, the
NRC has examined the enforceability of the previous regulatory
framework applicable to worker fatigue, which included the non-legally-
binding Generic Letter 82-12. As explained in the 2008 final rule's
SOC, the broad and nonprescriptive provisions of the pre-2008 10 CFR
part 26 and the technical specifications and license conditions
pertaining to fatigue that existed at that time lacked clearly defined
terms or measures of fatigue. This regulatory structure made it
difficult for the NRC to enforce worker fatigue requirements and work
hour limits in an effective, efficient, and uniform manner that would
ensure that all licensees provided reasonable assurance that workers
were able to safely and competently perform their duties. In contrast
to that framework, the 2008 final rule established fatigue management
program requirements that can be readily and consistently enforced.
This final rule does not detract from that program but rather provides
an optional means to achieve the goal of providing reasonable assurance
of the management of cumulative fatigue. No change was made to the
final rule as a result of this comment.
Other Comments Within the Scope of the Rulemaking
The UCS suggested that workers on 12-hour shifts would be
restricted to working alternating 5-day (60 hours per week) and 4-day
(48 hours per week) work weeks to adhere to the 54-hour average limit.
The NRC disagrees that such a schedule would be the only permissible
schedule under the alternative. For example, licensees could arrange a
6-week schedule of 72 hours, 72 hours, 60 hours, 48 hours, 36 hours,
and 36 hours, which would average 54 hours per week and also meet the
work hour controls in Sec. 26.205(d)(1) and (d)(2). No change was made
to the final rule as a result of this comment.
The UCS commented that the proposed revision to Sec. 26.205(d)(4)
would require licensees to follow the minimum days off requirements
during outages lasting longer than 60 days, even if they applied the
alternative approach before and during the outage. The NRC does not
agree that the proposed rule would have required these licensees to
meet the minimum days off requirements following the first 60 days of a
unit outage. Individuals subject to the minimum days off requirements
before a unit outage are subject to those same requirements after the
first 60 days of the outage, unless Sec. 26.205(d)(6) applies. Under
the proposed and final rules, licensees who use the maximum average
work hours provisions before an outage must follow
[[Page 43540]]
those requirements after the first 60 days of the outage, unless Sec.
26.205(d)(6) applies. The amendment to Sec. 26.205(d)(4) allows
licensees who use the maximum average work hours provisions before an
outage to use those requirements during the outage too. A similar
option is and has been available to licensees implementing the minimum
days off requirements. Amended Sec. 26.205(d)(4) does not change
licensees' obligations after the first 60 days of an outage. No change
was made to the final rule as a result of this comment.
Comments Beyond the Scope of the Rulemaking
Mr. Sloan remarked that some duties do not require constant
surveillance, so the individuals performing these duties should not be
subject to the fatigue management requirements. He also commented 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. Mr. Sloan also believes that the rule is too
complex and does not guarantee that an individual subject to the work
hour requirements will diligently perform their duties.
The NRC considers Mr. Sloan's comments to be beyond the limited
scope of the proposed and final rules. Mr. Sloan's comments concern the
overall concept of the 10 CFR part 26 work hour controls. As directed
by the Commission in the March 24, 2011, SRM, the NRC will consider
these comments in a separate rulemaking effort, which the NRC has
identified as the Quality Control/Quality Verification rulemaking. No
change was made to the final rule as a result of these comments.
Mr. Callahan claimed that the 10 CFR part 26 work hour controls do
not reduce worker fatigue but can increase fatigue during outages.
Specifically, he noted that when an individual works a backshift
schedule, taking a 1-day break disrupts that person's sleep pattern.
Recovery from this disruption takes several days, thus inducing
fatigue. Mr. Callahan concluded that once a person adjusts to the
unnatural sleep pattern (e.g., nightshift), it is far better to
continue that pattern for the duration of an outage. He also stated
that the current rule has caused a drop in his earnings.
The NRC considers Mr. Callahan's comments to be beyond the limited
scope of the proposed and final rules. Mr. Callahan's comments concern
the overall concept of the 10 CFR part 26 work hour controls. As
directed by the Commission in the March 24, 2011, SRM, the NRC will
consider these comments in a separate rulemaking effort, which the NRC
has identified as the Quality Control/Quality Verification rulemaking.
No change was made to the final rule as a result of these comments.
III. Description of the Final Rule
A. Maximum Weekly Average of 54 Hours Worked Over a 6-Week Averaging
Period That Advances on a Weekly Basis
One cause of cumulative fatigue is consecutive days of restricted
or poor quality sleep. In turn, consecutive days of restricted or poor
quality sleep may be caused by such things as shift-work, extended work
days, and extended work weeks. Former Subpart I of 10 CFR part 26
offered nuclear power plant licensees only one primary method to manage
cumulative fatigue: provide individuals with a minimum number of days
off over the course of a period not to exceed 6 weeks. The distribution
of the days off during the 6-week period acts to either prevent or
mitigate cumulative fatigue.
An alternative method for managing cumulative fatigue is to
establish a requirement to limit actual hours worked instead of
mandating the number of days off which individuals must have. A limit
on actual hours worked, when applied to schedules that require regular
shift coverage, limits the number of work hours that can contribute to
cumulative fatigue and, as a practical matter, results in periodic days
off for recovery rest. A schedule resulting in a weekly average of 54
hours worked, calculated using an averaging period of up to 6 weeks
that incrementally advances on a consistent basis, is such a schedule.
In general, most individuals that work their normal shift schedule
and receive only the minimum number of days off required under the
minimum days off requirements of Sec. 26.205(d)(3) could average as
many as 54 hours of work per week. However, the NEI indicated that
implementation of the minimum days off requirements reduced licensee
scheduling flexibility and imposed a substantial administrative burden.
By comparison, limiting work hours to an average of not more than 54
hours per week by using an averaging period of up to 6 weeks with 7-day
incremental periods limits the number of consecutive weeks of extended
work hours that an individual can work by using a comparable but
simpler and more flexible requirement. The 6-week limit also remains
consistent with the averaging duration and technical basis of the
minimum days off requirements, as described in the SOC for the 2008 10
CFR part 26 final rule. In addition, this alternative does not depend
on the length of an individual's shift schedule. The alternative
eliminates for licensees and individuals the burden of tracking the
number of days off that an individual receives in a period not to
exceed 6 weeks. Based on stakeholder input, the alternative will
relieve operational burdens by enabling licensee personnel to engage in
certain safety-beneficial practices with fewer scheduling restrictions,
such as holding off-shift shift manager meetings and using the most
knowledgeable workers in responding to plant events and conditions. The
flexibility provided by the alternative also could improve individuals'
quality of life by allowing more flexibility in the way that
individuals use their time when they are not working.
Use of 7-day incremental periods will provide reasonable assurance
that licensees will not schedule several consecutive weeks of high
levels of work hours and will not introduce unintended complexity to
the implementation of the alternative. An upper limit on the length of
the incremental period of 7 days prevents licensees from establishing
fixed 5- or 6[dash]week schedules. Those schedules permit licensees to
back-load one fixed schedule with long work hour weeks and front-load
the next fixed schedule with long work hour weeks, resulting in several
consecutive weeks of long work hours and the potential for individuals
to experience cumulative fatigue. Requiring licensees to advance their
averaging periods on a 7-day basis limits the number of hours that can
be worked in consecutive weeks because each week's hours affect the
number of hours that can be worked in the other weeks in the averaging
period. By advancing the averaging period on a consistent basis,
licensees must consider the impact of each week's work hours before and
after each incremental advance.
In summary, the maximum number of hours that can be worked under
the alternative approach is comparable to the maximum number of hours
that can be worked by most individuals under the 10 CFR part 26 minimum
days off requirements, except that the alternative requirement provides
greater simplicity and flexibility. Although the schedule required
under the alternative approach limits the number of consecutive
extended work weeks and thereby limits the potential for cumulative
fatigue, there are unusual potential circumstances in which the
alternative requirement could be met and the schedule could be
fatiguing. Such schedules include having only one in every nine days
off or consistently
[[Page 43541]]
working the maximum allowable hours, which would likely result in
cumulative fatigue. However, the industry has stated that these unusual
schedules are improbable. The NRC concludes that this alternative
approach, together with other aspects of the rule that remain
unchanged, provide reasonable assurance that licensees will manage
cumulative fatigue in a manner that contributes to the protection of
public health and safety and common defense and security.
B. Alternative to the Minimum Days Off Requirements
The NRC is creating a new Sec. 26.205(d)(7) that contains the
alternative method for managing cumulative fatigue. This final rule
allows nuclear power plant licensees and other entities identified in
Sec. 26.3(a) and, if applicable, (c) and (d) to choose whether or not
to implement this alternative approach, in lieu of compliance with the
minimum days off requirements in Sec. 26.205(d)(3). The NRC is not
removing the Sec. 26.205(d)(3) minimum days off requirements and
mandating that all licensees instead adopt new maximum average work
hours requirements. Some licensees may be satisfied with the minimum
days off requirements. In addition, a mandated change would constitute
backfitting under the NRC's Backfit Rule, 10 CFR 50.109. None of the
exceptions in Sec. 50.109(a)(4) to the requirement to prepare a
backfit analysis could be justified, and a backfit analysis could not
demonstrate that a mandatory rule would constitute a cost-justified
substantial increase in protection to public health and safety or
common defense and security. For these reasons, the NRC has decided to
add the maximum weekly average of 54 work hours, averaged over a period
of up to 6 weeks that advances every 7 days, as an alternative to the
minimum days off requirements.
C. Applicability
The alternative in this final rule can be used only in place of the
minimum days off requirements in Sec. 26.205(d)(3) and is applicable
only to individuals subject to work hour controls under Sec.
26.205(a). Under Sec. 26.205(a), the subject individuals are those
described in Sec. 26.4(a). The NRC's determination that the proposed
alternative is equivalent to the minimum days off requirements
considered the collective advantages and disadvantages of having all
individuals who are subject to the work hour controls under a single
set of cumulative fatigue management requirements. Thus, licensees are
not able to subject one group of individuals under Sec. 26.4(a) to the
minimum days off requirements in Sec. 26.205(d)(3) and another group
of individuals under Sec. 26.4(a) to new Sec. 26.205(d)(7)
requirements. Licensees must select only one option. This choice
establishes the legally-binding requirement for that licensee for all
individuals subject to the work hour controls of Sec. 26.205.
Allowing licensees to implement the minimum days off and
alternative requirements simultaneously would also create an undue
burden for NRC inspectors and undue cost and burden for licensees.
Having different workers subject to different requirements would make
inspections more burdensome because of the amount of administrative
time that would be necessary for NRC inspectors to prepare for and
conduct an inspection. Taking this extra time would reduce the amount
of available time for inspectors to conduct risk-informed inspections.
Furthermore, licensees implementing both options would incur additional
costs associated with having two processes and two training programs to
implement the options and increased burden in managing individuals on a
work shift who are subject to different work-hour requirements. This
scheduling challenge would also diminish the industry's desire to have
scheduling flexibility that enables safety-beneficial practices such as
shift manager meetings and just-in-time training. These were the types
of safety-beneficial practices that were curtailed as a result of the
inflexibility of the minimum days off requirements.
Consistent with the minimum days off requirements in Sec.
26.205(d)(3), the alternative maximum average work hours provisions
apply to all periods of operations, with several specified exceptions:
(1) During force-on-force exercises; (2) during plant emergencies; and
(3) for security personnel when they are needed to maintain the common
defense and security. In those limited circumstances, special
provisions, described in section IV. of this document, apply. In
addition, licensees had the option under former Sec. 26.205(d)(4) to
comply with the minimum days off requirements in either Sec.
26.205(d)(3) or (d)(4) during unit outages when the affected
individuals are working on outage activities. Licensees also had the
option under former Sec. 26.205(d)(5) to comply with the minimum days
off requirements in either Sec. 26.205(d)(3) or (d)(5) during unit
outages, security system outages, or increased threat conditions. Under
the final rule, licensees also have the option to comply with the
maximum average work hours requirements under the above conditions. The
SOC for the 2008 10 CFR part 26 final rule explained the reasons why
the Commission permits the exceptions and options involving the minimum
days off requirements. The approach set forth in this final rule offers
licensees an alternative to the minimum days off requirements that is
equally effective at managing cumulative fatigue. Therefore, the SOC
for the 2008 10 CFR Part 26 final rule also provides the justification
for why the alternative applies to the exceptions and options described
in section IV. of this document.
The NRC's Office of Enforcement issued EGM-09-008, ``Enforcement
Guidance Memorandum--Dispositioning Violations of NRC Requirements for
Work Hour Controls Before and Immediately After a Hurricane Emergency
Declaration,'' on September 24, 2009. The EGM-09-008 gives the NRC
staff guidance for processing violations of work hour controls
requirements during conditions before and immediately after the
declaration of an emergency for a hurricane, when licensees sequester
plant staff on site to ensure personnel are available for relief of
duties, and potentially granting enforcement discretion for the
affected requirements. Under EGM-09-008, the NRC may exercise
enforcement discretion for violations of 10 CFR 26.205(c) and (d) while
a licensee sequesters site personnel in preparation for hurricane
conditions that are expected to result in the declaration of an
emergency caused by high winds and immediately after the licensee has
exited the emergency declaration. The licensee must meet certain
conditions, including having site-specific procedural guidance that
specifies the conditions necessary to sequester site personnel, and
having requested an exemption from 10 CFR 26.205(c) and (d), or any
part thereof, to allow for sequestering site personnel before and
immediately after a hurricane. If the licensee must sequester before an
exemption has been submitted, then the licensee must agree, in writing,
to request the exemption no later than 6 months before the onset of the
next hurricane season, as established by the National Oceanic and
Atmospheric Administration's National Hurricane Center. The EGM-09-008
refers to Sec. 26.205(d) generally, and therefore, the requirements in
Sec. 26.205(d)(7) also fall under the enforcement discretion described
by EGM-09-008. Also, licensees who, before the effective date of this
final rule, were granted exemptions from
[[Page 43542]]
Sec. 26.205(d) before and immediately after a hurricane emergency
declaration can rely on that exemption if they implement the
requirements in Sec. 26.205(d)(7).
IV. Section-by-Section Analysis
10 CFR 26.203 General Provisions
Section 26.203 establishes requirements for licensees' fatigue
management policies, procedures, training, examinations, recordkeeping,
and reporting. The NRC is making conforming changes to paragraphs
within Sec. 26.203 to ensure consistency between the implementation of
the minimum days off requirements in Sec. 26.205(d)(3) and the
implementation of the maximum average work hours requirements in Sec.
26.205(d)(7).
Section 26.203(d)(2)
Section 26.203(d)(2) requires licensees to retain records of shift
schedules and shift cycles of individuals who are subject to the work
hour requirements established in Sec. 26.205. These records are
necessary, in part, to ensure that documentation of the licensee's
fatigue management program is retained and available for the NRC
inspectors to verify that licensees are complying with the work hour
requirements and waiver and fatigue assessment provisions. Licensees
that implement the alternative must be able to demonstrate that
individuals subject to the new work hour controls have not exceeded the
average weekly work hours limit; therefore, inspectors need to know the
averaging periods used by the licensee. The NRC is amending Sec.
26.203(d)(2) to include the requirement that licensees implementing the
requirements in Sec. 26.205(d)(7) maintain records showing the
beginning and end times and dates of all 6-week or shorter averaging
periods. These licensees must also retain records of shift schedules to
ensure compliance with the requirements in Sec. 26.205(c) and (d)(2).
Section 26.203(e)(1)
The former Sec. 26.203(e)(1) required licensees to provide the NRC
with an annual summary of all instances during the previous calendar
year in which the licensee waived each of the work hour controls
specified in Sec. 26.205(d)(1) through (d)(5)(i) for individuals who
perform the duties listed in Sec. 26.4(a)(1) through (a)(5). The NRC
is revising Sec. 26.203(e)(1) to require licensees to also report the
instances when the licensee waived the requirements in Sec.
26.205(d)(7).
Section 26.203(e)(1)(i) and (e)(1)(ii)
Section 26.203(e)(1)(i) and (e)(1)(ii) requires licensees to report
whether work hour controls are waived for individuals working on normal
plant operations or working on outage activities. The final rule
requires licensees to include whether the alternative requirements in
Sec. 26.205(d)(7) were waived during normal plant operations or while
working on outage activities.
10 CFR 26.205 Work Hours
Section 26.205 sets forth the NRC's requirements governing work
hour controls applicable to individuals performing the duties in 10 CFR
26.4(a)(1) through (a)(5). The NRC is adding new Sec. 26.205(d)(7) and
(d)(8) and making conforming changes to paragraphs within Sec. 26.205
to ensure consistency between the implementation of the minimum days
off requirements in Sec. 26.205(d)(3) and the implementation of the
maximum average work hours requirements in Sec. 26.205(d)(7).
Section 26.205(b)(5)
Section 26.205(b)(5) allows licensees to exclude from the
calculation of an individual's work hours unscheduled work performed
off site (e.g., technical assistance provided by telephone from an
individual's home), provided the total duration of the work does not
exceed a nominal 30 minutes during any single break period. For the
purposes of compliance with the minimum break requirements of Sec.
26.205(d)(2) and the minimum days off requirements of Sec.
26.205(d)(3) through (d)(5), such duties do not constitute work periods
or work shifts. The NRC is revising Sec. 26.205(b)(5) to exclude these
incidental duties from hours worked under Sec. 26.205(d)(7).
Section 26.205(d)(3)
The former Sec. 26.205(d)(3) required licensees to ensure that
subject individuals have, at minimum, the days off as specified in this
section. Under the final rule, licensees have the option of either
complying with the minimum days off requirements in Sec. 26.205(d)(3)
or the alternative requirements in Sec. 26.205(d)(7).
Section 26.205(d)(4)
Section 26.205(d)(4) provides a limited discretionary exception
from the minimum days off requirements in Sec. 26.205(d)(3) for
individuals performing the duties specified in Sec. 26.4(a)(1) through
(a)(4) (i.e., certain operations, chemistry, health physics, fire
brigade, and maintenance activities). The exception from the minimum
days off requirements is available during the first 60 days of a unit
outage while a subject individual is working on outage activities. In
these circumstances, licensees are not required to calculate the
requisite number of an individual's days off by a weekly average over a
period of up to 6 weeks. Instead, if the licensee elects to apply the
exception, Sec. 26.205(d)(4) requires licensees to ensure that
individuals specified in Sec. 26.4(a)(1) through (a)(3) have a minimum
of 3 days off in each successive (i.e., non-rolling) 15-day period and
that individuals specified in Sec. 26.4(a)(4) have at least 1 day off
in any 7-day period. Detailed guidance on the applicability of this
rule provision is available in Regulatory Guide 5.73, ``Fatigue
Management for Nuclear Power Plant Personnel.'' After the first 60 days
of a unit outage, regardless of whether the individual is working on
unit outage activities, the individual is again subject to the minimum
days off requirements of Sec. 26.205(d)(3), except as permitted by
Sec. 26.205(d)(6). The NRC is revising Sec. 26.205(d)(4) to allow
licensees that implement the maximum average work hours alternative
before and after an outage to have the option to use the alternative or
the fixed number of days off approach during the first 60 days of a
unit outage.
Section 26.205(d)(5)(i)
Section 26.205(d)(5)(i) provides a discretionary exception from the
minimum days off requirements of Sec. 26.205(d)(3) for personnel
performing the duties described in Sec. 26.4(a)(5) during unit outages
or planned security system outages. The requirement limits this
exception period to 60 days from the beginning of the outage and
requires that individuals performing the security duties identified in
Sec. 26.4(a)(5) during this period have a minimum of 4 days off in
each non-rolling 15-day period. Amended Sec. 26.205(d)(5)(i) allows
licensees that implement the maximum average work hours alternative
before and after an outage to have the option to use the alternative or
the fixed number of days off approach in Sec. 26.205(d)(5)(i) for
security personnel during the first 60 days of a unit outage or planned
security system outage.
Section 26.205(d)(5)(ii)
Section 26.205(d)(5)(ii) provides a discretionary exception from
the minimum days off requirements of Sec. 26.205(d)(3) and (d)(5)(i)
for security personnel during the first 60 days of an unplanned
security system outage or an increased threat condition. Individuals
[[Page 43543]]
performing the security duties identified in Sec. 26.4(a)(5) during
this period do not have to meet the minimum days off requirements of
Sec. 26.205(d)(3) or (d)(5)(i). The NRC is revising Sec.
26.205(d)(5)(ii) to provide that, during the first 60 days of an
unplanned security system outage or an increased threat condition,
licensees would not need to meet the requirements of Sec.
26.205(d)(3), (d)(5)(i), or (d)(7) for security personnel.
Section 26.205(d)(7)
The NRC is including a new section in 10 CFR Part 26 governing
maximum average work hours for subject individuals, which licensees can
implement as an alternative to comparable provisions in Sec.
26.205(d)(3). Licensees who choose to implement this alternative must
nonetheless comply with all requirements in Sec. 26.205 other than the
minimum days off requirements in Sec. 26.205(d)(3).
The individuals subject to the maximum average work hours
requirements in this section are the same as the individuals subject to
the comparable controls in Sec. 26.205(d)(3), which, according to
Sec. 26.205(a), are the individuals described in Sec. 26.4(a). Unlike
the minimum days off requirements, the maximum average work hours
alternative establishes a uniform requirement for all individuals
described in Sec. 26.205(a) without regard for their assigned duties
or the lengths of their shift schedules.
Section 26.205(d)(7)(i)
Licensees who elect to implement the requirements of Sec.
26.205(d)(7)(i) must manage affected individuals' cumulative fatigue by
limiting the number of hours they work each week to an average of 54
hours. The 54-hour average is computed over an averaging period of up
to 6 weeks. As an averaging period ends, a licensee advances (i.e.,
adjusts forward) the beginning and end times and dates of the averaging
periods by 7 consecutive calendar days. Licensees must describe in
their FFD procedures, as required by new Sec. 26.205(d)(8), the
beginning and end times and days of the week for the averaging periods.
Section 26.205(d)(7)(ii)
Licensees implementing the maximum average work hours requirements
in Sec. 26.205(d)(7)(i) have an option under new Sec.
26.205(d)(7)(ii) regarding how they count work hours, for purposes of
computing an individual's average number of work hours, during an
individual's overnight work shift. When a shift begins near the end of
a calendar day and concludes during the next calendar day, licensees
can treat the hours worked during that shift as if the hours were all
worked on the day the shift started, or licensees can attribute the
hours of the shift to the calendar days on which the hours were
actually worked. For example, if an individual begins her 10-hour shift
at 8 p.m. on Sunday, then that shift would end at 6 a.m. on Monday. The
licensee could consider all 10 hours as having been worked on the
Sunday, or the licensee could count 4 hours worked on Sunday (from 8
p.m.-12 a.m.) and 6 hours worked on Monday (from 12 a.m.-6 a.m.). The
final rule and section IV. of this document refer to these two methods
of counting the hours of an individual's overnight work shift under
Sec. 26.205(d)(7) as the ``work hour counting systems.''
Section 26.205(d)(7)(iii)
New Sec. 26.205(d)(7)(iii) requires each licensee to document, in
its FFD policies and procedures required by 10 CFR 26.27 and 10 CFR
26.203, which work hour counting system in Sec. 26.205(d)(7)(ii) the
licensee is using. As a general matter, good regulatory practice
requires each licensee to clearly document its licensing basis,
especially where the NRC's requirements offer the licensee one or more
regulatory alternatives. If a licensee clearly and sufficiently
documents its licensing basis, then the licensee can more easily
determine, despite changes (as applicable) in personnel, procedures, or
its design, whether the licensee continues to comply with its licensing
basis and applicable NRC requirements. Effective documentation also
allows the NRC to quickly and accurately determine the licensee's
status of compliance and affords the public an opportunity to
understand the legal constraints to which that licensee is subject.
Section 26.27 requires licensees to establish written FFD policies
and procedures, and 10 CFR 26.203(a) and (b) requires licensees to
include in the Sec. 26.27 written policies and procedures the specific
policies and procedures for the management of fatigue, including the
process for implementing the work hour controls in Sec. 26.205. To
ensure clarity in the regulations and each licensee's licensing basis,
new Sec. 26.205(d)(7)(iii) clearly establishes the licensee's (and
applicant's) regulatory obligation to document in its FFD policies and
procedures, required by Sec. 26.27 and Sec. 26.203(a) and (b), the
work hour counting system the licensee is using.
Section 26.205(d)(8)
Under new Sec. 26.205(d)(8), each licensee needs to explicitly
state, in its FFD policies and procedures required by 10 CFR 26.27 and
10 CFR 26.203, the requirements with which it is complying: the minimum
days off provisions in Sec. 26.205(d)(3) or the maximum average work
hours requirements in Sec. 26.205(d)(7). Under 10 CFR 26.203(a) and
(b), information concerning the process for implementing the maximum
average work hours requirements would include, for instance, the
beginning and end times and days of the week for the averaging periods.
As with new Sec. 26.205(d)(7)(iii), because licensees have the option
of two cumulative fatigue management programs to implement, Sec.
26.205(d)(8) establishes the licensee's (and applicant's) regulatory
obligation to document in its FFD policies and procedures, required by
Sec. 26.27 and Sec. 26.203(a) and (b), the requirements with which it
will comply: the requirements in Sec. 26.205(d)(3) or Sec.
26.205(d)(7). Licensees are free to switch to the other set of legally-
binding requirements, so long as the requirement of Sec. 26.205(d)(8)
is met.
Section 26.205(d)(8) was designated as Sec. 26.205(d)(7)(ii) in
the proposed rule. That provision of the proposed rule could have been
read to require licensees to document their election of requirements
only if they implemented the alternative. By removing the requirement
from Sec. 26.205(d)(7) and establishing the requirement in a
regulatory provision independent of the provisions concerning the
alternative, the NRC ensures that all licensees document their
election.
Section 26.205(e)(1)(i)
Section 26.205(e)(1) requires licensees to review the actual work
hours and performance of individuals who are subject to this section
for consistency with the requirements of Sec. 26.205(c), so that
licensees can determine if they are controlling the work hours of
individuals consistent with the objective of preventing impairment from
fatigue due to the duration, frequency, or sequencing of successive
shifts. Section 26.205(e)(1)(i) requires the licensees to assess the
actual work hours and performance of individuals whose actual hours
worked during the review period exceeded an average of 54 hours per
week in any shift cycle while the individuals' work hours are subject
to the requirements of Sec. 26.205(d)(3). The NRC is amending Sec.
26.205(e)(1)(i) to require licensees to assess the actual work hours
and performance of
[[Page 43544]]
individuals whose actual hours worked during the review period exceeded
an average of 54 hours per week in any averaging period of up to 6
weeks. The duration of the averaging periods is the same duration that
the licensees use to control the individuals' work hours to comply with
the requirements of Sec. 26.205(d)(7). In some instances, the
averaging period used to control individuals' work hours to comply with
the requirements of Sec. 26.205(d)(7) will be a partial averaging
period of 1 or more full (i.e., 7 consecutive calendar days) weeks but
less than the duration of the licensee's normal full averaging period.
Section 26.205(e)(1)(i) requires licensees to review the actual work
hours and performance of individuals whose actual hours worked exceeded
an average of 54 hours per week in any averaging period, regardless of
whether the averaging period was a full or partial averaging period.
10 CFR 26.207 Waivers and Exceptions
Section 26.207 provides the criteria that licensees must meet to
grant waivers and enact exceptions from the work hour requirements in
Sec. 26.205(d)(1) through (d)(5)(i). The NRC is making conforming
changes to paragraphs within Sec. 26.207 to ensure consistency between
the implementation of the minimum days off requirements in Sec.
26.205(d)(3) and the implementation of the maximum average work hours
requirements in Sec. 26.205(d)(7).
Section 26.207(a)
Section 26.207(a) permits licensees to grant waivers from the work
hours requirements in Sec. 26.205(d)(1) through (d)(5)(i) for
conditions that meet the two criteria specified in Sec. 26.207(a). The
NRC is revising Sec. 26.207(a) to authorize licensees to grant waivers
from the work hours requirements in Sec. 26.205(d)(7) if the criteria
in Sec. 26.207(a) are met.
Section 26.207(b)
Section 26.207(b) relieves licensees from the minimum days off
requirements of Sec. 26.205(d)(3) by allowing them to exclude shifts
worked by security personnel during the actual conduct of NRC-evaluated
force-on-force tactical exercises when calculating the individual's
number of days off. The final rule amends Sec. 26.207(b) to permit
licensees to exclude from the maximum average work hours requirements
of Sec. 26.205(d)(7) the hours worked by security personnel during the
actual conduct of NRC-evaluated force-on-force tactical exercises.
10 CFR 26.209 Self-Declarations
Section 26.209 requires licensees to take immediate action in
response to a self-declaration by an individual who is working under,
or being considered for, a waiver from the work hour controls in Sec.
26.205(d)(1) through (d)(5)(i). The NRC is making a conforming change
to Sec. 26.209(a) to ensure consistency between the implementation of
the minimum days off requirements in Sec. 26.205(d)(3) and the
implementation of the maximum average work hours requirements in Sec.
26.205(d)(7).
Section 26.209(a)
Section 26.209(a) is amended to address the situation in which an
individual is performing, or being assessed for, work under a waiver of
the requirements contained in Sec. 26.205(d)(7) and declares that, due
to fatigue, he or she is unable to safely and competently perform his
or her duties. The licensee shall immediately stop the individual from
performing any duties listed in Sec. 26.4(a), except if the individual
is required to continue performing those duties under other
requirements in Chapter 1 of Title 10. If the subject individual must
continue performing the duties listed in Sec. 26.4(a) until relieved,
then the licensee shall immediately take action to relieve the
individual.
10 CFR 26.211 Fatigue assessments
Section 26.211 requires licensees to conduct fatigue assessments
under several conditions. The NRC is making conforming changes to
paragraphs within Sec. 26.211 to ensure consistency between the
implementation of the minimum days off requirements in Sec.
26.205(d)(3) and the implementation of the maximum average work hours
requirements in Sec. 26.205(d)(7).
Section 26.211(b)(2)(iii)
Section 26.211(b)(2)(iii) prohibits individuals from performing a
post-event fatigue assessment if they evaluated or approved a waiver of
the limits specified in Sec. 26.205(d)(1) through (d)(5)(i) for any of
the individuals who were performing or directing the work activities
during which the event occurred if the event occurred while such
individuals were performing work under that waiver. The final rule
amends Sec. 26.211(b)(2)(iii) to prohibit individuals from performing
a post-event fatigue assessment if they evaluated or approved a waiver
of the limits specified in Sec. 26.205(d)(7) for any of the
individuals who were performing or directing the work activities during
which the event occurred if the event occurred while such individuals
were performing work under that waiver.
Section 26.211(d)
Section 26.211(d) prohibits licensees from concluding that fatigue
has not degraded or will not degrade an individual's ability to safely
and competently perform his or her duties solely on the basis that the
individual's work hours have not exceeded any of the limits specified
in Sec. 26.205(d)(1) or that the individual has had the minimum rest
breaks required in Sec. 26.205(d)(2) or the minimum days off required
in Sec. 26.205(d)(3) through (d)(5). The NRC is amending Sec.
26.211(d) to include the maximum average work hours among the criteria
that licensees may not solely rely on when concluding that fatigue has
not degraded or will not degrade an individual's ability to safely and
competently perform his or her duties.
V. Availability of Documents
The following table lists documents that are related to this final
rule and available to the public and indicates how they may be
obtained. See the ADDRESSES section of this document on the physical
locations and Web sites where the documents may be accessed.
----------------------------------------------------------------------------------------------------------------
Document PDR Web NRC Library (ADAMS)
----------------------------------------------------------------------------------------------------------------
U.S. Nuclear Regulatory Commission, X .......................... ML083450028
Regulatory Guide 5.73, ``Fatigue
Management For Nuclear Power Plant
Personnel'' (March 2009).
U.S. Nuclear Regulatory Commission, X .......................... ML082840762
Generic Letter 82-12, ``Nuclear Power
Plant Staff Working Hours'' (June 15,
1982).
PRM-26-5, Petition to Amend 10 CFR Part X Docket ID NRC-2010-0304... ML102590440
26, ``Fitness-for-Duty Programs,''
filed by the Nuclear Energy Institute
(September 3, 2010).
[[Page 43545]]
Anthony R. Pietrangelo on Behalf of the ............ Docket ID NRC-2010-0304. ............................
Nuclear Energy Institute; Notice of
Receipt of Petition for Rulemaking, 75
FR 65249 (October 22, 2010).
Request for Enforcement Discretion filed X .......................... ML102710208
by the Nuclear Energy Institute
(September 23, 2010).
PRM-26-6, Petition to Amend 10 CFR Part X Docket ID NRC-2010-0310... ML102630127
26, filed by Eric Erb (August 17, 2010).
Eric Erb; Notice of Receipt of Petition ............ Docket ID NRC-2010-0310. ............................
for Rulemaking, 75 FR 71368 (November
23, 2010).
SECY-11-0003, Status of Enforcement X .......................... ML103420201
Discretion Request and Rulemaking
Activities Related to 10 CFR Part 26,
Subpart I, ``Managing Fatigue''
(January 4, 2011).
SECY-11-0028, Options for Implementing X .......................... ML110390077
an Alternative Interim Regulatory
Approach to the Minimum Days Off
Provisions of 10 CFR Part 26, Subpart
I, ``Managing Fatigue'' (February 28,
2011).
EGM-09-008, ``Enforcement Guidance X .......................... ML092380177
Memorandum--Dispositioning Violations
of NRC Requirements for Work Hour
Controls Before and Immediately After a
Hurricane Emergency Declaration''
(September 24, 2009).
Staff Requirements--SECY-11-0003--Status X .......................... ML110830971
of Enforcement Discretion Request and
Rulemaking Activities Related to 10 CFR
Part 26, Subpart I, ``Managing
Fatigue'' and SECY-11-0028--Options for
Implementing an Alternative Interim
Regulatory Approach to the Minimum Days
Off Provisions of 10 CFR Part 26,
Subpart I, ``Managing Fatigue'' (March
24, 2011).
Updated Notice of Public Meeting to X .......................... ML103160388
Discuss Part 26, Subpart I,
Implementation to Understand Unintended
Consequences of the Minimum Day Off
Requirements (November 15, 2010).
Summary of November 18, 2010, Public X .......................... ML103430557
Meeting to Discuss Part 26, Subpart I,
Implementation to Understand Unintended
Consequences of the Minimum Day Off
Requirements (December 13, 2010).
Update--Notice of Public Meeting X .......................... ML103550089
Regarding Part 26, Subpart I, Minimum
Days Off Requirements and Options
Licensees May Implement to Receive
Enforcement Discretion From These
Requirements (December 30, 2010).
Summary of January 6, 2011, Public X .......................... ML110280446
Meeting Regarding Part 26, Subpart I,
Minimum Days Off Requirements and
Options Licensees May Implement to
Receive Enforcement Discretion from
these Requirements (February 3, 2011).
Notice of Public Meeting to Discuss X .......................... ML110140315
Alternatives To the Part 26, Subpart I,
Minimum Days Off Requirements (January
14, 2011).
Summary of January 25, 2011, Public X .......................... ML110340512
Meeting to Discuss Alternatives to the
Part 26, Subpart I, Minimum Days Off
Requirements (February 3, 2011).
Sunshine Federal Register Notice of X .......................... ML110200295
February 8, 2011, Commission Briefing
on the Implementation of Part 26, 76 FR
5626 (February 1, 2011).
Transcript of February 8, 2011, X .......................... ML110410169
Commission Briefing on the
Implementation of Part 26.
Interim Enforcement Policy for Minimum ............ Docket ID NRC-2011-0058. ............................
Days Off Requirements, 76 FR 22802
(April 25, 2011).
Alternative to the Minimum Days Off ............ Docket ID NRC-2011-0058. ............................
Requirements; Proposed Rule, 76 FR
23208 (April 26, 2011).
Alternative to the Minimum Days Off ............ Docket ID NRC-2011-0058. ............................
Requirements; Proposed Rule;
Correction, 76 FR 24831 (May 3, 2011).
Comments of Mr. Erik Erb (May 6, 2011).. X Docket ID NRC-2011-0058... ML11130A113
Comments of the Union of Concerned X Docket ID NRC-2011-0058... ML11132A013
Scientists (May 10, 2011).
Comments of Mr. Harry Sloan (May 23, X Docket ID NRC-2011-0058... ML11144A157
2011).
Comments of the Nuclear Energy Institute X Docket ID NRC-2011-0058... ML11146A109
(May 25, 2011).
Comments of Mark Callahan (May 25, 2011) X Docket ID NRC-2011-0058... ML11146A110
Comments of Larry Lawson (May 26, 2011). X Docket ID NRC-2011-0058... ML11146A111
Comments of Dominion Resources Services, X Docket ID NRC-2011-0058... ML11151A143
Inc. (May 27, 2011).
Comments of Entergy Operations, Inc and X Docket ID NRC-2011-0058... ML11151A140
Entergy Nuclear Operations, Inc (May
27, 2011).
Comments of Arizona Public Service X Docket ID NRC-2011-0058... ML11151A141
Company (May 27, 2011).
Comments of Tennessee Valley Authority X Docket ID NRC-2011-0058... ML11153A044
(May 26, 2011).
[[Page 43546]]
PRM-26-5: Petition for Rulemaking; ............ Docket ID NRC-2010-0304. ............................
Consideration in the Rulemaking
Process, 76 FR 28192 (May 16, 2011).
PRM-26-6: Petition for Rulemaking; ............ Docket ID NRC-2010-0310. ............................
Consideration in the Rulemaking
Process, 76 FR 28191 (May 16, 2011).
Update, Notice of Public Meeting to X .......................... ML11102A071
Discuss Implementation Guidance for
Cumulative Fatigue Requirements that
will be Based on a Maximum 54 Hour Per
Week Rolling Average (April 13, 2011).
Summary Of April 27, 2011, Public X .......................... ML11126A366
Meeting to Discuss Implementation
Guidance for Cumulative Fatigue
Requirements that will be Based on a
Maximum 54 Hour Per Week Rolling
Average (May 16, 2011).
Notice of Public Meeting to Discuss X .......................... ML11119A200
Implementation Guidance for Cumulative
Fatigue Requirements that will be Based
on a Maximum 54 Hour Per Week Rolling
Average (April 29, 2011).
Notice of Public Meeting to Discuss X .......................... ML11139A193
Implementation Guidance for Cumulative
Fatigue Requirements that will be Based
on a Maximum 54 Hour Per Week Rolling
Average (May 17, 2011).
Notice of Public Meeting to Discuss X .......................... ML11144A133
Implementation Guidance for Cumulative
Fatigue Requirements that will be Based
on a Maximum 54 Hour Per Week Rolling
Average (June 6, 2011).
Summary of June 1, 2011, Public Meeting X .......................... ML11164A008
to Discuss Implementation Guidance for
Cumulative Fatigue Requirements that
will be Based on a Maximum 54 Hour Per
Week Rolling Average (June 13, 2011).
----------------------------------------------------------------------------------------------------------------
VI. Criminal Penalties
For the purposes of Section 223 of the Atomic Energy Act (AEA), as
amended, the NRC is issuing this final rule that amends 10 CFR part 26
under one or more of Sections 161b, 161i, or 161o of the AEA. Willful
violations of the rule are subject to criminal enforcement. Criminal
penalties as they apply to regulations in 10 CFR part 26 are discussed
in Sec. 26.825.
VII. Compatibility of Agreement State Regulations
Under the ``Policy Statement on Adequacy and Compatibility of
Agreement State Programs,'' approved by the Commission on June 20,
1997, and published in the Federal Register on September 3, 1997 (62 FR
46517), this final rule is classified as compatibility ``NRC.''
Compatibility is not required for Category ``NRC'' regulations. The NRC
program elements in this category are those that relate directly to
areas of regulation reserved to the NRC by the AEA or the provisions of
10 CFR, and although an Agreement State may not adopt program elements
reserved to the NRC, it may wish to inform its licensees of certain
requirements via a mechanism that is consistent with a particular
State's administrative procedure laws but does not confer regulatory
authority on the State.
VIII. Assessment of Federal Regulations and Policies on Families
In accordance with Section 654 of the Treasury and General
Government Appropriations Act, 1999 (Pub. L. 105-277), the NRC has
assessed this action against the seven factors set forth in this act.
The NRC has determined that this action will not negatively affect
family well-being.
IX. Voluntary Consensus Standards
The NRC is using this standard instead of the following voluntary
consensus standard developed by the American Nuclear Society (ANS):
American National Standards Institute (ANSI)/ANS-3.2-1988. The NRC has
determined that using a Government-unique standard is justified. The
NRC declined to use the ANS standard when the fatigue management
provisions in Subpart I of 10 CFR part 26 were adopted in 2008. (73 FR
16966; March 31, 2008, at 17170 (second and third column)). The
alternative for managing cumulative fatigue through a maximum average
work hours requirement in this final rule has no counterpart in ANSI/
ANS-3.2-1988 that could be adopted to manage cumulative fatigue, and
the NRC declines to reconsider its overall decision in the 2008
rulemaking not to adopt the fatigue management approach embodied in the
ANS standard. Accordingly, the NRC concludes that there are no
voluntary consensus standards that could be adopted in lieu of the
adoption of the Government-unique standard in this final rule.
X. Finding of No Significant Environmental Impact: Environmental
Assessment
The Commission has determined under the National Environmental
Policy Act of 1969, as amended, and the Commission's regulations in
Subpart A of 10 CFR part 51, that this final rule is not a major
Federal action significantly affecting the quality of the human
environment and, therefore, an environmental impact statement is not
required. This final rule allows licensees of nuclear power reactors to
use a different method from the one previously prescribed in the NRC's
regulations for determining whether certain nuclear power plant workers
must be afforded time off from work.
The NRC has determined that the alternative for determining time
off does not significantly alter the likelihood that there will be an
increase in fatigued workers causing operational problems or a
radiological event, or being unable to properly perform their
functions. The alternative provides affected licensees with a more-
easily implemented approach for determining when subject individuals
must be afforded the time off. The NRC recognizes that there are
unusual potential circumstances in which the alternative requirement
could be met and the schedule could be fatiguing. Such schedules
include having only one in every nine days off or consistently working
the maximum
[[Page 43547]]
allowable hours, which would likely result in cumulative fatigue.
However, the industry has stated that these unusual schedules are
improbable. The NRC concludes that this alternative approach, together
with other aspects of the rule that remain unchanged, provide
reasonable assurance that licensees will manage cumulative fatigue in a
manner that contributes to the protection of public health and safety
and common defense and security. In addition, the alternative is
expected to reduce scheduling constraints on certain safety-beneficial
practices. Because the NRC's regulatory objective continues to be met
under the alternative adopted in this final rule, there is no change in
environmental impacts, during operation or while the nuclear power
plant is in shutdown, as compared with the environmental impact of the
minimum days off requirements.
The primary alternative to this action is the no-action
alternative. The no-action alternative could result in a greater
administrative burden on nuclear power plant licensees in complying
with the minimum days off requirements, as compared with the
alternative to the minimum days off requirements under the final rule.
In addition, individuals subject to minimum days off requirements could
personally believe that their quality of life and work conditions are
less favorable under the no-action alternative, as compared with the
alternative maximum average work hours requirements that could be
selected under the final rule.
The no-action alternative provides little or no environmental
benefit. In addition, the no-action alternative has led nuclear power
plant licensees to use work scheduling approaches that, for example,
reduce their capability to use the most knowledgeable workers in
responding to plant events and conditions. This may provide less safety
and greater risk as compared with the less burdensome scheduling
approaches that licensees are allowed to use under the alternative to
the minimum days off requirements under the final rule.
For these reasons, the NRC concludes that this rulemaking does not
have a significant adverse impact on the environment. This discussion
constitutes the environmental assessment for this final rule. The NRC
received no comments on the draft environmental assessment in the
proposed rule's SOC.
XI. Paperwork Reduction Act Statement
This final rule increases the burden on licensees that implement
the alternate method of managing cumulative fatigue. These licensees
will incur a one-time burden to revise FFD procedures, modify their
work hour tracking systems and individual work scheduling systems, and
state in their FFD policies and procedures the cumulative fatigue
management requirements and work hour counting system being used. The
public burden for this information collection is estimated to average
11.7 hours per recordkeeper. Because the burden for this information
collection is insignificant, Office of Management and Budget (OMB)
clearance is not required. Existing requirements were approved by the
OMB Control Number 3150-0146.
Send comments on any aspect of these information collections to the
Information Services Branch (T-5 F53), U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, or by Internet electronic mail
to [email protected] and to the Desk Officer, Office of
Information and Regulatory Affairs, NEOB-10202 (3150-0146), Office of
Management and Budget, Washington, DC 20503.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
unless the requesting document displays a currently valid OMB control
number.
XII. Regulatory Analysis
The NRC has not prepared a full regulatory analysis for this final
rulemaking. The NRC has determined that the maximum average work hours
requirement provides reasonable assurance that subject individuals are
not impaired due to cumulative fatigue caused by excessive work hours.
As such, adequate implementation of the alternative approach maintains
reasonable assurance that persons subject to work hour controls can
safely and competently perform their assigned duties and therefore
meets the intent of the minimum days off requirement. The 2008 10 CFR
Part 26 final rule contained a regulatory analysis to support the
minimum days off requirement. Because the alternative approach offers
licensees an option that is comparable to the minimum days off
requirements in managing cumulative fatigue, the 2008 final rule
regulatory analysis also supports this final rule.
Furthermore, both nuclear power plant licensees and individuals
subject to the NRC's requirements in 10 CFR 26.205(d)(3) governing
minimum days off derive substantial benefits by the NRC's adoption of
the alternative approach for controlling cumulative fatigue through
maximum average work hours that can be adopted by those licensees. In
addition, the NRC concludes that providing an alternative maintains the
ability of those licensees to continue using scheduling practices that
have a positive safety benefit. The NRC's conclusions in this regard
are based upon: (1) Information presented by two petitioners for
rulemaking seeking changes to the work hour controls in 10 CFR 26.205;
(2) NEI's request for enforcement discretion of those same regulatory
provisions in 10 CFR 26.205; (3) evidence gathered from stakeholders at
the three public meetings; (4) analysis performed by the NRC staff and
explained to the Commission in memoranda dated January 4, 2011, and
February 28, 2011; and (5) comments received on the proposed rule. In
the memoranda to the Commission, the NRC staff documented its
evaluation of the options available to the Commission to address the
concerns raised in the petitions for rulemaking and request for
enforcement discretion. At the February 8, 2011, Commission briefing on
the implementation of 10 CFR part 26, stakeholders appeared to support
the use of an expedited rulemaking process to address the issues
presented by the industry. In view of all of this information, the NRC
finds no added value in preparing a more detailed regulatory analysis
for this final rule.
XIII. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC
certifies that this final rule will not have a significant economic
impact on a substantial number of small entities. This final rule
affects only licensees that do not fall within the scope of the
definition of ``small entities'' set forth in the Regulatory
Flexibility Act or the size standards established by the NRC (10 CFR
2.810).
XIV. Backfitting
The NRC has determined that the Backfit Rule, 10 CFR 50.109, does
not apply to this final rule, nor is the final rule inconsistent with
any of the finality provisions in 10 CFR part 52. The final rule, in 10
CFR 26.205(d)(7), provides nuclear power plant licensees with an
alternative for compliance with the controls in 10 CFR 26.205(d)(3)
governing minimum days off for certain nuclear power plant workers.
Licensees are free to comply with either the requirements governing
minimum days off or with the alternative requirements in 10 CFR
26.205(d)(7). The NRC
[[Page 43548]]
concludes that a backfit analysis is not required for this final rule
because this final rule does not contain any provisions that constitute
backfitting.
The final rule is not inconsistent with any finality provisions in
10 CFR part 52. No standard design certification rule or standard
design approval issued under 10 CFR part 52, or currently being
considered by the NRC, addresses FFD requirements in 10 CFR part 26.
Accordingly, there are no issues resolved in those design certification
rules or design approvals that would be within the scope of the
cumulative fatigue controls in this final rule. In addition, the NRC
has not issued any combined licenses under 10 CFR part 52. Hence, there
are currently no holders of combined licenses who would be protected by
applicable issue finality provisions. The NRC concludes that this final
rule does not contain any provisions that would be inconsistent with
any of the finality provisions in 10 CFR part 52
XV. Congressional Review Act
In accordance with the Congressional Review Act of 1996, the NRC
has determined that this action is not a major rule and has verified
this determination with the Office of Information and Regulatory
Affairs of OMB.
List of Subjects in 10 CFR Part 26
Alcohol abuse, Alcohol testing, Appeals, Chemical testing, Drug
abuse, Drug testing, Employee assistance programs, Fitness for duty,
Management actions, Nuclear power reactors, Protection of information,
Reporting and recordkeeping requirements.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 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. Section 26.203 is amended by revising paragraph (d)(2), the
introductory text of paragraph (e)(1), and paragraphs (e)(1)(i) and
(e)(1)(ii), to read as follows:
Sec. 26.203 General provisions.
* * * * *
(d) * * *
(2) For licensees implementing the requirements of Sec.
26.205(d)(3), records of shift schedules and shift cycles, or, for
licensees implementing the requirements of Sec. 26.205(d)(7), records
of shift schedules and records showing the beginning and end times and
dates of all averaging periods, of individuals who are subject to the
work hour controls in Sec. 26.205;
* * * * *
(e) * * *
(1) A summary for each nuclear power plant site of all instances
during the previous calendar year when the licensee waived one or more
of the work hour controls specified in Sec. 26.205(d)(1) through
(d)(5)(i) and (d)(7) for individuals described in Sec. 26.4(a). The
summary must include only those waivers under which work was performed.
If it was necessary to waive more than one work hour control during any
single extended work period, the summary of instances must include each
of the work hour controls that were waived during the period. For each
category of individuals specified in Sec. 26.4(a), the licensee shall
report:
(i) The number of instances when each applicable work hour control
specified in Sec. 26.205(d)(1)(i) through (d)(1)(iii), (d)(2)(i) and
(d)(2)(ii), (d)(3)(i) through (d)(3)(v), and (d)(7) was waived for
individuals not working on outage activities;
(ii) The number of instances when each applicable work hour control
specified in Sec. 26.205(d)(1)(i) through (d)(1)(iii), (d)(2)(i) and
(d)(2)(ii), (d)(3)(i) through (d)(3)(v), (d)(4) and (d)(5)(i), and
(d)(7) was waived for individuals working on outage activities; and
* * * * *
0
3. Section 26.205 is amended by revising paragraphs (b)(5), (d)(4),
(d)(5)(i), (d)(5)(ii), and (e)(1)(i) and the introductory text of
paragraph (d)(3), and adding new paragraphs (d)(7) and (d)(8) to read
as follows:
Sec. 26.205 Work hours.
* * * * *
(b) * * *
(5) Incidental duties performed off site. Licensees may exclude
from the calculation of an individual's work hours unscheduled work
performed off site (e.g., technical assistance provided by telephone
from an individual's home), provided the total duration of the work
does not exceed a nominal 30 minutes during any single break period.
For the purposes of compliance with the minimum break requirements of
Sec. 26.205(d)(2), and the minimum days off requirements of Sec.
26.205(d)(3) through (d)(5) or the maximum average work hours
requirements of Sec. 26.205(d)(7), such duties do not constitute work
periods, work shifts, or hours worked.
* * * * *
(d) * * *
(3) Licensees shall either ensure that individuals have, at a
minimum, the number of days off specified in this paragraph, or comply
with the requirements for maximum average workhours in Sec.
26.205(d)(7). For the purposes of this section, a day off is defined as
a calendar day during which an individual does not start a work shift.
For the purposes of calculating the average number of days off required
in this paragraph, the duration of the shift cycle may not exceed 6
weeks.
* * * * *
(4) During the first 60 days of a unit outage, licensees need not
meet the requirements of Sec. 26.205(d)(3) or (d)(7) for individuals
specified in Sec. 26.4(a)(1) through (a)(4), while those individuals
are working on outage activities. However, the licensee shall ensure
that the individuals specified in Sec. 26.4(a)(1) through (a)(3) have
at least 3 days off in each successive (i.e., non-rolling) 15-day
period and that the individuals specified in Sec. 26.4(a)(4) have at
least 1 day off in any 7-day period;
(5) * * *
(i) During the first 60 days of a unit outage or a planned security
system outage, licensees need not meet the requirements of Sec.
26.205(d)(3) or (d)(7). However, licensees shall ensure that these
individuals have at least 4 days off in each successive (i.e., non-
rolling) 15-day period; and
(ii) During the first 60 days of an unplanned security system
outage or increased threat condition, licensees need not meet the
requirements of Sec. 26.205(d)(3), (d)(5)(i), or (d)(7).
* * * * *
(7) Licensees may, as an alternative to complying with the minimum
days off requirements in Sec. 26.205(d)(3), comply with the
requirements for maximum average work hours in this paragraph.
(i) Individuals may not work more than a weekly average of 54
hours, calculated using an averaging period of up to six (6) weeks,
which advances by 7 consecutive calendar days at the finish of every
averaging period.
(ii) For purposes of this section, when an individual's work shift
starts at the end of a calendar day and concludes during the next
calendar day, the licensee shall either consider the hours worked
during that entire shift as if they
[[Page 43549]]
were all worked on the day the shift started, or attribute the hours to
the calendar days on which the hours were actually worked.
(iii) Each licensee shall state, in its FFD policy and procedures
required by Sec. 26.27 and Sec. 26.203(a) and (b), the work hour
counting system in Sec. 26.205(d)(7)(ii) the licensee is using.
(8) Each licensee shall state, in its FFD policy and procedures
required by Sec. 26.27 and Sec. 26.203(a) and (b), the requirements
with which the licensee is complying: the minimum days off requirements
in Sec. 26.205(d)(3) or maximum average work hours requirements in
Sec. 26.205(d)(7).
(e) * * *
(1) * * *
(i) Individuals whose actual hours worked during the review period
exceeded an average of 54 hours per week in any shift cycle while the
individuals' work hours are subject to the requirements of Sec.
26.205(d)(3) or in any averaging period of up to 6 weeks, using the
same averaging period durations that the licensee uses to control the
individuals' work hours, while the individuals' work hours are subject
to the requirements of Sec. 26.205(d)(7);
* * * * *
0
4. Section 26.207 is amended by revising the introductory text of
paragraph (a), and paragraph (b), to read as follows:
Sec. 26.207 Waivers and assessments.
(a) Waivers. Licensees may grant a waiver of one or more of the
work hour controls in Sec. 26.205(d)(1) through (d)(5)(i) and (d)(7),
as follows:
* * * * *
(b) Force-on-force tactical exercises. For the purposes of
compliance with the minimum days off requirements of Sec. 26.205(d)(3)
or the maximum average work hours requirements of Sec. 26.205(d)(7),
licensees may exclude shifts worked by security personnel during the
actual conduct of NRC-evaluated force-on-force tactical exercises when
calculating the individual's number of days off or hours worked, as
applicable.
* * * * *
0
5. Section 26.209 is amended by revising paragraph (a) to read as
follows:
Sec. 26.209 Self-declarations.
(a) If an individual is performing, or being assessed for, work
under a waiver of one or more of the requirements contained in Sec.
26.205(d)(1) through (d)(5)(i) and (d)(7) and declares that, due to
fatigue, he or she is unable to safely and competently perform his or
her duties, the licensee shall immediately stop the individual from
performing any duties listed in Sec. 26.4(a), except if the individual
is required to continue performing those duties under other
requirements of this chapter. If the subject individual must continue
performing the duties listed in Sec. 26.4(a) until relieved, the
licensee shall immediately take action to relieve the individual.
* * * * *
0
6. Section 26.211 is amended by revising paragraphs (b)(2)(iii) and (d)
to read as follows:
Sec. 26.211 Fatigue assessments.
(b) * * *
(2) * * *
(iii) Evaluated or approved a waiver of one or more of the limits
specified in Sec. 26.205(d)(1) through (d)(5)(i) and (d)(7) for any of
the individuals who were performing or directing (on site) the work
activities during which the event occurred, if the event occurred while
such individuals were performing work under that waiver.
* * * * *
(d) The licensee may not conclude that fatigue has not or will not
degrade the individual's ability to safely and competently perform his
or her duties solely on the basis that the individual's work hours have
not exceeded any of the limits specified in Sec. 26.205(d)(1), the
individual has had the minimum breaks required in Sec. 26.205(d)(2) or
minimum days off required in Sec. 26.205(d)(3) through (d)(5), as
applicable, or the individual's hours worked have not exceeded the
maximum average number of hours worked in Sec. 26.205(d)(7).
* * * * *
Dated at Rockville, Maryland, this 15th day of July 2011.
For the Nuclear Regulatory Commission.
Martin J. Virgilio,
Acting Executive Director for Operations.
[FR Doc. 2011-18395 Filed 7-20-11; 8:45 am]
BILLING CODE 7590-01-P