[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