Alternative to Minimum Days Off Requirements, 23208-23218 [2011-9925]

Download as PDF 23208 Proposed Rules Federal Register Vol. 76, No. 80 Tuesday, April 26, 2011 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. NUCLEAR REGULATORY COMMISSION 10 CFR Part 26 RIN 3150–AI94 [NRC–2011–0058] Alternative to Minimum Days Off Requirements Nuclear Regulatory Commission. ACTION: Proposed rule. AGENCY: The U.S. Nuclear Regulatory Commission (NRC or the Commission) is proposing to amend its regulations governing the fitness for duty of workers at nuclear power plants. These amendments would allow holders of nuclear power plant operating licenses the option to use a different method from the one currently 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: Submit comments by May 26, 2011. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date. Requests for extension of the comment period will not be granted. ADDRESSES: Please include Docket ID NRC–2011–0058 in the subject line of your comments. For instructions on submitting comments and accessing documents related to this action, see ‘‘Submitting Comments and Accessing Information’’ in the SUPPLEMENTARY INFORMATION section of this document. You may submit comments by any one of 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: Carol.Gallagher@nrc.gov. jlentini on DSKJ8SOYB1PROD with PROPOSALS SUMMARY: VerDate Mar<15>2010 16:08 Apr 25, 2011 Jkt 223001 • Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attn: Rulemakings and Adjudications Staff. • E-mail comments to: Rulemaking.Comments@nrc.gov. If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at 301–415–1677. • Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays (telephone: 301–415– 1677). • Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 301– 415–1101. 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: Howard.Benowitz@nrc.gov. SUPPLEMENTARY INFORMATION: I. Submitting Comments and Accessing Information II. Background A. NRC’s Current Regulations B. Stakeholder Reaction to the Current Fitness for Duty Requirements C. Public Meetings and Commission Direction III. Description of the Proposed Rule A. Maximum Weekly Average of 54 Hours Worked Over a 6-Week Rolling Window B. Proposed Alternative to the Minimum Days Off Requirements C. Applicability IV. Section-by-Section Analysis V. Specific Request for Comment VI. Availability of Documents VII. Criminal Penalties VIII. Compatibility of Agreement State Regulations IX. Plain Language X. Voluntary Consensus Standards XI. Finding of No Significant Environmental Impact XII. Paperwork Reduction Act Statement XIII. Regulatory Analysis XIV. Regulatory Flexibility Certification XV. Backfit Analysis I. Submitting Comments and Accessing Information Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site, http:// www.regulations.gov. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 you do not want to be publicly disclosed. The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed. You can access publicly available information related to this document using the following methods: • NRC’s Public Document Room (PDR): The public may examine and have copied, for a fee, publicly available documents at the NRC’s PDR, Room 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 electronically at the NRC’s Electronic Reading Room at http:// www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS, which provides text and image files of NRC’s public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC’s PDR reference staff at 1–800–397–4209, or 301–415–4737, or by e-mail to PDR.Resource@nrc.gov. • Federal Rulemaking Web Site: Public comments and supporting materials related to this proposed rulemaking can be found at http:// www.regulations.gov by searching on Docket ID NRC–2011–0058. II. Background A. NRC’s Current Regulations On March 31, 2008, the NRC adopted 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 E:\FR\FM\26APP1.SGM 26APP1 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules jlentini on DSKJ8SOYB1PROD with PROPOSALS 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 Current Fitness for Duty Requirements On September 3, 2010, the Nuclear Energy Institute (NEI) submitted a petition for rulemaking (PRM–26–5). In PRM–26–5, the NEI states that ‘‘the new rule has resulted in consequences not originally envisioned when the rule was developed and that these consequences have diminished the safety benefits of the rule.’’ The NEI states that the unintended consequences stem from the minimum days off requirements, specifically § 26.205(d)(3) through § 26.205(d)(6), because they create an undue level of complexity and inflexibility in managing worker fatigue. These regulations mandate a specified minimum average number of days off per week, averaged over a fixed time period. The minimum average number of days off depends on the duties the individual performs and, for § 26.205(d)(3), the length of an individual’s shift schedule (i.e., whether the individual is working 8-, 10- or 12hour shifts). The NEI requests, among other changes, that 10 CFR part 26, Subpart I, be amended to replace the minimum days off requirements in § 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 proposes changing the § 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 proposes to eliminate the minimum days off requirements in § 26.205(d)(3) through § 26.205(d)(6), while the work hour limits and break requirements in § 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 part 26. The request reiterates the NEI’s opinion that the regulations that govern fatigue management impede ‘‘many safetybeneficial practices at plant sites, VerDate Mar<15>2010 16:08 Apr 25, 2011 Jkt 223001 adversely [impact] the quality of life of covered workers, and [result] in conflicts between rule requirements and represented bargaining unit agreements.’’ The letter requests 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 requests 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 are comfortable with the current minimum days off requirements, the stakeholders at this public meeting claimed that the unintended consequences have diminished the safety benefits of the fatigue management provisions of 10 CFR part 26 and expressed the need for an alternative that is 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 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 current requirements for managing cumulative fatigue and a proposal to address the concerns raised by the industry stakeholders. The NRC staff proposed a maximum average 54hour work week, averaged over a 6-week rolling period, as an alternative to the § 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 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 23209 stakeholders were less certain that the NRC should consider proposals to change the current requirements. On March 24, 2011, the Commission issued a Staff Requirements Memorandum 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 other issues related to the petitions for rulemaking, other changes to 10 CFR part 26, and comments received in this rulemaking proceeding that are outside the limited scope of this rulemaking, in a separate rulemaking effort. The Commission also directed the staff to expedite this rulemaking and provide a 30-day public comment period for this proposed rule instead of the typical 75day public comment period. III. Description of the Proposed Rule A. Maximum Weekly Average of 54 Hours Worked Over a 6-Week Rolling Window 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. Currently, Subpart I of 10 CFR part 26 requires nuclear power plant licensees to manage cumulative fatigue primarily by providing 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 would be to establish a requirement to limit actual hours worked instead of mandating the number of days off that individuals receive. A limit on actual hours worked, when applied to schedules that require regular shift coverage, would limit the number of work hours that can contribute to cumulative fatigue and, as a practical matter, result in periodic days off for recovery rest. A schedule resulting in a weekly average of 54 hours worked, calculated using a rolling period of up to 6 weeks, would be 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 current minimum days off requirements of § 26.205(d)(3) could average as many as 54 hours of E:\FR\FM\26APP1.SGM 26APP1 jlentini on DSKJ8SOYB1PROD with PROPOSALS 23210 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules work per week. However, the NEI has indicated that implementation of the minimum days off requirements has 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 a rolling window (i.e., averaging period) of up to 6 weeks would limit 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 would also remain consistent with the averaging duration and technical basis of the minimum days off requirements, as described in the Statement of Considerations (SOC) for the 2008 10 CFR part 26 final rule. In addition, this alternative would not depend on the length of an individual’s shift schedule and would eliminate 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 would 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. In summary, the maximum number of hours that could be worked under the proposed alternative approach would be comparable to the maximum number of hours that can be worked by most individuals under the current 10 CFR part 26 minimum days off requirements, except that the alternative requirement would provide for greater simplicity and flexibility. This proposed approach could be used only in place of the minimum days off requirements in § 26.205(d)(3) and would be applicable only to individuals subject to work hour controls under § 26.205(a). Under § 26.205(a), the subject individuals are those described in § 26.4(a). The NRC determination that the proposed alternative would be 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 would not be able to subject one group of individuals under § 26.4(a) to the requirements in § 26.205(d)(3) and another group of individuals under § 26.4(a) to proposed § 26.205(d)(7) requirements. Allowing licensees to implement the minimum days off and VerDate Mar<15>2010 16:08 Apr 25, 2011 Jkt 223001 proposed alternative requirements simultaneously would also create a burden for NRC oversight and inspections. Although the rolling schedule required under the proposed alternative approach would limit the number of consecutive extended work weeks and thereby limit the potential for cumulative fatigue, there are unusual potential circumstances in which the proposed 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 allowable hours, which would likely result in cumulative fatigue. However, the industry has stated that these unusual schedules are improbable. The NRC believes that this proposed alternative approach, together with other aspects of the rule that will remain unchanged, would 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. Proposed Alternative to the Minimum Days Off Requirements The NRC proposes to create a new § 26.205(d)(7) that would contain the proposed alternative. The proposed rule would allow nuclear power plant licensees and other entities identified in § 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 current rule’s minimum days off requirements in § 26.205(d)(3). The NRC is not proposing to remove the current § 26.205(d)(3) minimum days off requirements and mandate that all licensees instead adopt new maximum average work hour requirements. Some licensees may be satisfied with the current requirements. In addition, a mandated change would constitute backfitting under the NRC’s Backfit Rule, 10 CFR 50.109. None of the exceptions in § 50.109(a)(4) to preparation of 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 propose the maximum weekly average of 54 work hours, averaged over a rolling window of up to 6 weeks, as an alternative to the minimum days off requirements. PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 C. Applicability Consistent with the current rule’s minimum days off requirements in § 26.205(d)(3), the proposed alternative maximum average work hours provisions would apply to all periods of operations, with several specified exceptions: during force-on-force exercises and plant emergencies and for security personnel when they are needed to maintain the common defense and security. In those limited circumstances, special provisions, described below, would apply. In addition, licensees currently have the option under § 26.205(d)(4) to comply with the minimum days off requirements in either § 26.205(d)(3) or § 26.205(d)(4) during unit outages when the affected individuals are working on outage activities, and have the option under § 26.205(d)(5) to comply with the minimum days off requirements in either § 26.205(d)(3) or § 26.205(d)(5) during unit outages, security system outages, or increased threat conditions. Under the proposed rule, licensees also would have the option to comply with the maximum average work hours requirements under the above conditions. The reasons that the Commission permits the exceptions and options involving the minimum days off requirements are explained in the SOC for the 2008 10 CFR part 26 final rule. Because the proposed optional approach would offer licensees an equivalent minimum days off alternative that is equally effective at managing cumulative fatigue, the 2008 10 CFR part 26 final rule SOC also provides the justification for why the proposed alternative would apply to the exceptions and options described herein. The current rule, in § 26.205(d)(4), offers licensees the option to apply different minimum days off requirements during the first 60 days of a unit outage for individuals working on outage activities. During this part of outages, 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. The regulation requires licensees who choose the outage option to provide affected individuals with a fixed number of days off over a 15-day period or 7-day period, depending on the duties performed by the individuals. Similarly, the cumulative fatigue management provisions for security personnel in current § 26.205(d)(5)(i) allow licensees, during the first 60 days of a unit outage or a planned security system outage, the option to comply with the minimum days off E:\FR\FM\26APP1.SGM 26APP1 jlentini on DSKJ8SOYB1PROD with PROPOSALS Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules requirements in § 26.205(d)(3) or provide security personnel with a fixed number of days off over a 15-day period. Under proposed § 26.205(d)(4) and (d)(5)(i), licensees that choose the alternative maximum average work hours approach during non-outage periods would have the option to use the proposed alternative or the fixed number of days off approaches during the first 60 days of outages. During the first 60 days of an unplanned security system outage or increased threat condition, current § 26.205(d)(5)(ii) provides a discretionary exception from the minimum days off requirement in § 26.205(d)(3) and (d)(5)(i) so that security personnel subject to the work hour requirements would not be required to meet the minimum days off requirements. The proposed § 26.205(d)(5)(ii) would permit licensees who implement the maximum average work hours approach during non-outage periods to not meet the proposed § 26.205(d)(7) requirements during the first 60 days of an unplanned security system outage or increased threat condition. Section 26.207(b) of the current regulations relieves licensees from the minimum days off requirements of § 26.205(d)(3) by allowing licensees to exclude shifts worked by security personnel during the actual conduct of NRC-evaluated force-on-force tactical exercises when calculating the individuals’ required number of days off. The proposed rule would permit licensees who implement the proposed alternative during non-outage periods to exclude from the proposed § 26.205(d)(7) calculations the hours worked by security personnel during the actual conduct of NRC-evaluated forceon-force tactical exercises. Current § 26.207(c) provides a licensee relief from the work hour control requirements of § 26.205 for security personnel upon written notification from the NRC, for the purpose of assuring the common defense and security for a period the NRC defines. In the proposed rule, licensees would also be relieved from the requirements of proposed § 26.205(d)(7) in this situation. As stated in current § 26.207(d), a licensee need not meet the work hour controls, including the minimum days off requirements, during declared emergencies, as defined in the licensee’s emergency plan. Under the proposed rule, consistent with the current approach for minimum days off requirements during declared emergencies, licensees would not need to meet the requirements of the VerDate Mar<15>2010 16:08 Apr 25, 2011 Jkt 223001 proposed § 26.205(d)(7) during the period of the declared emergency. The NRC 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,’’ dated September 24, 2009, to give 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 and not cite licensees 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. The EGM refers to § 26.205(d) generally, and therefore, the requirements in proposed § 26.205(d)(7) would also fall under the enforcement discretion described by EGM–09–008. 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 proposes to make conforming changes to paragraphs within § 26.203 to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average work hours requirements in proposed § 26.205(d)(7). Section 26.203(d)(2) Section 26.203(d)(2) currently requires licensees to retain records of shift schedules and shift cycles of individuals who are subject to the work hour requirements established in § 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. Because licensees that implement the alternative would need to show inspectors that individuals subject to the new work hour controls have not exceeded the average weekly work hour limit, inspectors would need to know the PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 23211 averaging periods used by the licensee. Therefore, the NRC proposes to amend § 26.203(d)(2) to include the requirement that licensees implementing the requirements in proposed § 26.205(d)(7) maintain records showing the beginning and end times and dates of all 6-week or shorter averaging periods. These licensees would also need to retain records of shift schedules to ensure compliance with the requirements in § 26.205(c) and § 26.205(d)(2). Section 26.203(e)(1) Current § 26.203(e)(1) requires 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 § 26.205(d)(1) through (d)(5)(i) for individuals who perform the duties listed in § 26.4(a)(1) through (a)(5). Section 26.203(e)(1) would be revised in the proposed rule to require licensees to also report the instances when the licensee waived the requirements in proposed § 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 proposed rule would require licensees to include whether the alternative requirements in proposed § 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 proposes to add a new § 26.205(d)(7) and make conforming changes to existing paragraphs within § 26.205 to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average work hours requirements in proposed § 26.205(d)(7). Section 26.205(b)(5) Section 26.205(b)(5) currently 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 E:\FR\FM\26APP1.SGM 26APP1 23212 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules minimum break requirements of § 26.205(d)(2) and the minimum days off requirements of § 26.205(d)(3) through (d)(5), such duties do not constitute work periods or work shifts. The proposed rule would revise § 26.205(b)(5) to exclude these incidental duties from hours worked under proposed § 26.205(d)(7). jlentini on DSKJ8SOYB1PROD with PROPOSALS Section 26.205(d)(3) Currently, § 26.205(d)(3) requires licensees to ensure that subject individuals have, at minimum, the days off as specified in this section. Under the proposed rule, licensees would have the option of either complying with the minimum days off requirements in § 26.205(d)(3) or the alternative requirements in proposed § 26.205(d)(7). Section 26.205(d)(4) Current § 26.205(d)(4) provides a limited discretionary exception from the minimum day off requirements in § 26.205(d)(3) for individuals performing the duties specified in § 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, if the licensee elects to apply the exception, § 26.205(d)(4) requires licensees to ensure that individuals specified in § 26.4(a)(1) through (a)(3) have a minimum of 3 days off in each successive (i.e., nonrolling) 15-day period and that individuals specified in § 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 § 26.205(d)(3), except as permitted by § 26.205(d)(6). The NRC proposes to revise § 26.205(d)(4) to allow licensees that choose the maximum average work hours alternative during non-outage periods to have the option to use the proposed 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) currently provides a discretionary exception from the minimum days off requirements of § 26.205(d)(3) for personnel performing the duties described in § 26.4(a)(5) VerDate Mar<15>2010 16:08 Apr 25, 2011 Jkt 223001 during unit outages or unplanned 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 § 26.4(a)(5) during this period have a minimum of 4 days off in each nonrolling 15-day period. Proposed § 26.205(d)(5)(i) would allow licensees that choose the maximum average work hours alternative during non-outage periods to have the option to use the proposed alternative or the fixed number of days off approach in § 26.205(d)(5)(i) for security personnel during the first 60 days of a unit outage or unplanned security system outage. Section 26.205(d)(5)(ii) Current § 26.205(d)(5)(ii) provides a discretionary exception from the minimum days off requirements of § 26.205(d)(3) for security personnel during the first 60 days of an unplanned security system outage or an increased threat condition. Individuals performing the security duties identified in § 26.4(a)(5) during this period do not have to meet the minimum days off requirements of § 26.205(d)(3). Proposed § 26.205(d)(5)(ii) would 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 § 26.205(d)(3), § 26.205(d)(5)(i), or proposed § 26.205(d)(7) for security personnel. Section 26.205(d)(7) This would be a new section governing maximum average work hours for subject individuals, with which licensees could voluntarily choose to comply as an alternative to complying with comparable provisions in § 26.205(d)(3). Licensees who choose to comply with this alternative would nonetheless comply with all requirements in § 26.205 other than the minimum days off requirements in § 26.205(d)(3). The individuals subject to the proposed maximum average work hours requirements in this section would be the same as the individuals subject to the comparable controls in § 26.205(d)(3), which, according to § 26.205(a), are the individuals described in § 26.4(a). Unlike the minimum days off requirements, the proposed maximum average work hours alternative would apply to all individuals described in § 26.205(a) without regard for their assigned duties or the length of their shift schedules. PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 Section 26.205(d)(7)(i) Licensees who elect to implement the requirements of proposed § 26.205(d)(7)(i) would 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 would be computed over a rolling period of up to 6 weeks. Licensees would roll (i.e., adjust forward) the beginning and end times and dates of their averaging periods (of up to 6 weeks) by no more than 7 consecutive calendar days at any time. Licensees would be expected to describe in their FFD procedures, as required by proposed § 26.205(d)(7)(ii), the beginning and end times and days of the week for the averaging periods. Section 26.205(d)(7)(ii) In proposed § 26.205(d)(7)(ii), each licensee would need to explicitly state, in its FFD policies and procedures required by 10 CFR 26.27 and 10 CFR 26.203, with which requirements it is complying: The minimum days off provisions in § 26.205(d)(3) or the maximum average work hours requirements in proposed § 26.205(d)(7). 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. Arguably, the NRC’s regulations would already require the licensee to document its decision to comply with the alternative to the minimum days off requirements in proposed § 26.205(d)(7). 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 § 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 § 26.205. However, to avoid ambiguity on this matter, the NRC would make clear in § 26.205(d)(7)(ii) the licensee’s (and applicant’s) regulatory obligation to document in its E:\FR\FM\26APP1.SGM 26APP1 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules jlentini on DSKJ8SOYB1PROD with PROPOSALS FFD policies and procedures, required by § 26.27 and § 26.203(a) and (b), including the process for implementing the work hour controls, with which requirements it will comply: The requirements in § 26.205(d)(3) or proposed § 26.205(d)(7). The cumulative fatigue management requirements with which each licensee elects to comply, either the requirements in § 26.205(d)(3) or proposed § 26.205(d)(7), would be the legally-binding requirements for that licensee for all individuals subject to the work hour controls of § 26.205. For example, licensees would not be able to subject one group of individuals under § 26.4(a) to the requirements in § 26.205(d)(3) and another group of individuals under § 26.4(a) to proposed § 26.205(d)(7) requirements. Implementing the minimum days off and proposed alternative requirements simultaneously would create a burden for NRC inspectors because before they could even begin their inspection review, the inspectors would have to ascertain which groups of individuals were subject to which set of requirements. The review itself would then be more burdensome because the review would include additional steps depending on the applicable individuals and requirements. In addition, the NRC assessed the proposed alternative as equivalent to the minimum days off requirements considering 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. Nevertheless, licensees would be free to switch to the other set of legally-binding requirements, so long as the requirement of proposed § 26.205(d)(7)(ii) was met. Section 26.205(e)(1)(i) Currently, § 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 § 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 § 26.205(d)(3). The NRC proposes to amend § 26.205(e)(1)(i) to require VerDate Mar<15>2010 16:08 Apr 25, 2011 Jkt 223001 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 averaging period of up to 6 weeks. The duration of the averaging periods would be the same duration that the licensees use to control the individuals’ work hours to comply with the requirements of proposed § 26.205(d)(7). 10 CFR 26.207 Waivers and Exceptions Section 26.207 provides the criteria that licensees must meet to authorize waivers and enact exceptions from the work hour requirements in § 26.205(d)(1) through (d)(5)(i). The NRC proposes to make conforming changes to paragraphs within § 26.207 to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average hours worked requirements in proposed § 26.205(d)(7). Section 26.207(a) Section 26.207(a) permits licensees to authorize waivers from the work hour requirements in § 26.205(d)(1) through (d)(5)(i) for conditions that meet the two criteria specified in § 26.207(a). Section 26.207(a) would be revised in the proposed rule to authorize licensees to grant waivers from the work hour requirements in proposed § 26.205(d)(7) if the criteria in § 26.207(a) are met. Section 26.207(b) Current § 26.207(b) relieves licensees from the minimum days off requirements of § 26.205(d)(3) by allowing them to exclude shifts worked by security personnel during the actual conduct of NRC-evaluated force-onforce tactical exercises when calculating the individual’s number of days off. The proposed rule would amend § 26.207(b) to permit licensees to exclude from the maximum average work hours requirements of proposed § 26.205(d)(7) the hours worked by security personnel during the actual conduct of NRCevaluated 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 § 26.205(d)(1) through (d)(5)(i). The NRC proposes to make a conforming change to § 26.209(a) to ensure consistency between the implementation of the minimum days off requirements in PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 23213 § 26.205(d)(3) and the implementation of the maximum average hours worked requirements in proposed § 26.205(d)(7). Section 26.209(a) Section 26.209(a) would be amended in the proposed rule to address the situation when an individual is performing, or being assessed for, work under a waiver of the requirements contained in proposed § 26.205(d)(7) and declares that, due to fatigue, he or she is unable to safely and competently perform his or her duties. As in the current § 26.209(a), the licensee shall immediately stop the individual from performing any duties listed in § 26.4(a), except if the individual is required to continue performing those duties under other requirements in 10 CFR part 26. If the subject individual must continue performing the duties listed in § 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 currently requires licensees to conduct fatigue assessments under several conditions. The NRC proposes to make conforming changes to paragraphs within § 26.211 to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average hours worked requirements in proposed § 26.205(d)(7). Section 26.211(b)(2)(iii) Section 26.211(b)(2)(iii) prohibits individuals from performing a postevent fatigue assessment if they evaluated or approved a waiver of the limits specified in § 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 proposed rule would amend § 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 proposed § 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) Current § 26.211(d) prohibits licensees from concluding that fatigue has not degraded or will not degrade the individual’s ability to safely and E:\FR\FM\26APP1.SGM 26APP1 23214 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 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 § 26.205(d)(1) or that the individual has had the minimum rest breaks required in § 26.205(d)(2) or the minimum days off required in § 26.205(d)(3) through (d)(5). The NRC proposes to amend § 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. Specific Request for Comment The NRC is seeking advice and recommendations from the public on this proposed rule. The NRC will consider all comments received within the limited scope of this proposed rulemaking and address them in the final rule. We are particularly interested in comments and supporting rationale from the public on the following issue: Would the alternative approach provide comparable assurance of the management of cumulative fatigue as the current minimum days off requirements? VI. Availability of Documents The following table lists documents that are related to this proposed rule and available to the public and indicates how they may be obtained. See Submitting Comments and Accessing Information of the SUPPLEMENTARY INFORMATION section on the physical locations and Web sites where the documents may be accessed. jlentini on DSKJ8SOYB1PROD with PROPOSALS Document PDR Web Electronic Reading Room (Adams) U.S. Nuclear Regulatory Commission, Regulatory Guide 5.73, ‘‘Fatigue Management For Nuclear Power Plant Personnel’’ (March 2009). PRM–26–5, Petition to Amend 10 CFR part 26, ‘‘Fitness-for-Duty Programs,’’ filed by the Nuclear Energy Institute (September 3, 2010). Anthony R. Pietrangelo on Behalf of the Nuclear Energy Institute; Notice of Receipt of Petition for Rulemaking, 75 FR 65249 (October 22, 2010). Request for Enforcement Discretion filed by the Nuclear Energy Institute (September 23, 2010). PRM–26–6, Petition to Amend 10 CFR part 26, filed by Eric Erb (August 17, 2010). Eric Erb; Notice of Receipt of Petition for Rulemaking, 75 FR 71368 (November 23, 2010). SECY–11–0003, Status of Enforcement Discretion Request and Rulemaking Activities Related to 10 CFR part 26, Subpart I, ‘‘Managing Fatigue’’ (January 4, 2011). 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’’ (February 28, 2011). EGM–09–008, ‘‘Enforcement Guidance 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 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 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 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 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 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 Alternatives to the part 26, Subpart I, Minimum Days Off Requirements (January 14, 2011). Summary of January 25, 2011, Public Meeting to Discuss Alternatives to the part 26, Subpart I, Minimum Days Off Requirements. Sunshine Federal Register Notice of February 8, 2011, Commission Briefing on the Implementation of part 26, 76 FR 5626 (February 1, 2011). Transcript of February 8, 2011, Commission Briefing on the Implementation of part 26. X .............................................................. ML083450028 X Docket ID. NRC–2010–0304 ............... ML102590440 VII. Criminal Penalties For the purposes of Section 223 of the Atomic Energy Act (AEA), as amended, the NRC is issuing this proposed rule VerDate Mar<15>2010 16:08 Apr 25, 2011 Jkt 223001 .......... Docket ID. NRC–2010–0304. X .............................................................. ML102710208 X Docket ID. NRC–2010–0310 ............... ML102630127 .......... Docket ID. NRC–2010–0310. X .............................................................. ML103420201 X .............................................................. ML110390077 X .............................................................. ML092380177 X .............................................................. ML110830971 X .............................................................. ML103160388 X .............................................................. ML103430557 X .............................................................. ML103550089 X .............................................................. ML110280446 X .............................................................. ML110140315 X .............................................................. ML110340512 X .............................................................. ML110200295 X .............................................................. ML110410169 that would amend 10 CFR part 26 under one or more of Sections 161b, 161i, or 161o of the AEA. Willful violations of the rule would be subject to criminal PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 enforcement. Criminal penalties as they apply to regulations in 10 CFR part 26 are discussed in § 26.825. E:\FR\FM\26APP1.SGM 26APP1 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules VIII. 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 proposed 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. IX. Plain Language The Plain Writing Act of 2010 (Pub. L. 11 1–274) requires Federal agencies to write documents in a clear, concise, well-organized manner that also follows other best practices appropriate to the subject or field and the intended audience. Although regulations are exempt under the Act, the NRC is applying the same principles to its rulemaking documents. Therefore, the NRC has written this document, including the proposed amended and new rule language, to be consistent with the Plain Writing Act. In addition, where existing rule language must be changed, the NRC has rewritten that language to improve its organization and readability. The NRC requests comment on the proposed rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the NRC as explained in the ADDRESSES caption of this document. jlentini on DSKJ8SOYB1PROD with PROPOSALS X. Voluntary Consensus Standards The NRC proposes 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 Governmentunique standard would be 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 VerDate Mar<15>2010 16:08 Apr 25, 2011 Jkt 223001 requirement in this proposed 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 proposal to adopt the Government-unique standard in this proposed rule. XI. Finding of No Significant Environmental Impact 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 proposed rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. This proposed rule would allow licensees of nuclear power reactors to voluntarily use a different method from the one currently 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 would 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 would provide affected licensees with a moreeasily 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 proposed 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 allowable hours, which would likely result in cumulative fatigue. However, the industry has stated that these unusual schedules are improbable. The NRC believes that this proposed alternative approach, together with other aspects of the rule that will remain unchanged, would 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 proposed alternative is expected to reduce scheduling constraints on certain safetybeneficial practices. Because the NRC’s PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 23215 regulatory objective would continue to be met under the alternative adopted in this proposed rule, there should be no change in environmental impacts, during operation or while the nuclear power plant is in shutdown, as compared with the environmental impact of the current rule. The primary alternative to this action would be 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 in the current rule, as compared with the alternative to the minimum days off requirements under the proposed rule. In addition, individuals subject to minimum days off requirements could personally believe that their quality of life and work conditions are less under the no-action alternative, as compared with the alternative maximum average work hours requirements that could be selected under the proposed rule. The no-action alternative would provide 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 would be allowed to use under the alternative to the minimum days off requirements under the proposed rule. For these reasons, the NRC concludes that this rulemaking would not have a significant adverse impact on the environment. This discussion constitutes the environmental assessment for this proposed rule. However, public stakeholders should note that the NRC is seeking public participation. Comments on any aspect of this environmental assessment may be submitted to the NRC as indicated under the ADDRESSES section. XII. Paperwork Reduction Act Statement The public burden for this information collection is estimated to be 257 hours, which is insignificant. 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. Abstract This proposed rule would allow holders of nuclear power plant E:\FR\FM\26APP1.SGM 26APP1 jlentini on DSKJ8SOYB1PROD with PROPOSALS 23216 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules operating licenses the option to use a different method than the one currently 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. Licensees using the alternative method would calculate the number of hours worked by applicable individuals, with a per-person limit of a maximum weekly average of 54 hours worked over a 6-week rolling window. Burden would not increase for ongoing requirements, such as scheduling work hours, recording calculations of work hours, or recording and trending problems regarding work hours. Licensees choosing to use the alternate method would incur a one-time implementation burden to revise FFD procedures, modify their work hour tracking systems and individual work scheduling systems, and state in their FFD policies which method of fatigue management is being used. The NRC is seeking public comment on the potential impact of the information collections contained in this proposed rule and on the following issues: 1. Is the proposed information collection necessary for the proper performance of the functions of the NRC, including whether the information will have practical utility? 2. Is the estimate of burden accurate? 3. Is there a way to enhance the quality, utility, and clarity of the information to be collected? 4. How can the burden of the information collection be minimized, including the use of automated collection techniques? The public may examine and have copied, for a fee, publicly available documents, including the NRC Form 670, ‘‘Information Required for Making an Insignificant Burden Determination To Support a Decision That OMB Clearance Is Not Required,’’ at the NRC’s PDR, One White Flint North, 11555 Rockville Pike, Room O–1 F21, Rockville, MD 20852. The NRC Form 670 and proposed rule are available at the NRC’s Web site: http://www.nrc.gov/ public-involve/doccomment/omb/ index.html for 30 days after the signature date of this notice. Send comments on any aspect of these proposed information collections, including suggestions for reducing the burden and on the above issues, by May 26, 2011, to the Information Services Branch, U.S. Nuclear Regulatory Commission, Washington, DC 20555– 0001, or by e-mail to Infocollects.Resource@nrc.gov; and to VerDate Mar<15>2010 16:08 Apr 25, 2011 Jkt 223001 Christine J. Kymn, Desk Officer, Office of Information and Regulatory Affairs, NEOB–10202 (3150–0146), Office of Management and Budget, Washington, DC 20503. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date. You may also e-mail comments to Christine_J._Kymn@omb.eop.gov or comment by telephone at 202–395– 4638. 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. XIII. Regulatory Analysis The NRC has not prepared a full regulatory analysis for this proposed rulemaking. The NRC has determined that the proposed maximum average work hours requirement would provide 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 would maintain reasonable assurance that persons subject to work hour controls can safely and competently perform their assigned duties and therefore meets the intent of the current 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 proposed approach would offer licensees an alternative that is generally equivalent to the current minimum days off requirements in managing cumulative fatigue, the 2008 final rule regulatory analysis also supports this proposed rule. Furthermore, both nuclear power plant licensees and individuals subject to the NRC’s existing requirements in 10 CFR 26.205(d)(3) governing minimum days off would derive substantial benefits if the NRC were to adopt an alternative approach for controlling cumulative fatigue through maximum average work hours that could be voluntarily adopted by those licensees. In addition, the NRC concludes that providing an alternative would maintain 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 information presented by two petitioners for rulemaking seeking changes to the work hour controls in 10 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 CFR 26.205, NEI’s request for enforcement discretion of those same regulatory provisions in 10 CFR 26.205, evidence gathered from stakeholders at the three public meetings, and analysis performed by the NRC staff and explained in a January 4, 2011, memorandum and a February 28, 2011, memorandum to the Commission. In these memoranda, 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 did not see any value in preparing a more detailed regulatory analysis for this proposed rule. The NRC requests public comment on this draft regulatory analysis. Comments on the draft regulatory analysis may be submitted to the NRC as indicated under the ADDRESSES section of this document. XIV. Regulatory Flexibility Certification Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC certifies that this proposed rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This proposed 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). XV. Backfitting The NRC has determined that the Backfit Rule, 10 CFR 50.109, would not apply to this proposed rule, nor would the proposed rule be inconsistent with any of the finality provisions in 10 CFR part 52. The proposed rule, in 10 CFR 26.205(d)(7), would provide nuclear power plant licensees with an alternative for compliance with the existing controls in 10 CFR 26.205(d)(3) governing minimum days off for certain nuclear power plant workers. Licensees would be free to comply with either the existing rule’s requirements governing minimum days off or with the proposed alternative requirements in 10 CFR 26.205(d)(7). The NRC concludes that a backfit analysis would not be required for this proposed rule because this proposed rule would not contain any provisions that constitute backfitting. The proposed rule would not be inconsistent with any finality provisions E:\FR\FM\26APP1.SGM 26APP1 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 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 fitness-for-duty 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 minimum days off controls in this proposed 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 proposed rule would not contain any provisions that would be inconsistent with any of the finality provisions in 10 CFR part 52. 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. 553, the NRC is proposing to adopt the following amendments to 10 CFR part 26. PART 26—FITNESS FOR DUTY PROGRAMS § 26.205 1. The authority citation for part 26 continues to read as follows: 2. Section 26.203 is amended by revising paragraphs (d)(2), (e)(1) introductory text, (e)(1)(i), and (e)(1)(ii) to read as follows: General provisions. jlentini on DSKJ8SOYB1PROD with PROPOSALS * * * * * (d) * * * (2) For licensees implementing the requirements of § 26.205(d)(3), records of shift schedules and shift cycles, or, for licensees implementing the requirements of § 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 § 26.205; * * * * * VerDate Mar<15>2010 16:08 Apr 25, 2011 Jkt 223001 Work hours. * 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). § 26.203 (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 § 26.205(d)(1) through (d)(5)(i) and (d)(7) for individuals described in § 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 § 26.4(a), the licensee shall report: (i) The number of instances when each applicable work hour control specified in § 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 § 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 * * * * * 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 a new paragraph (d)(7) to read as follows: * * * * (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 § 26.205(d)(2), and the minimum days off requirements of § 26.205(d)(3) through (d)(5) or the maximum average work hours requirements of § 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 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 23217 work hours in § 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 § 26.205(d)(3) or (d)(7) for individuals specified in § 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 § 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 § 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 § 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) 15day 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 § 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 § 26.205(d)(3), comply with the requirements for maximum average work hours in this paragraph. 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 § 26.205 other than § 26.205(d)(3). (i) Individuals may not work more than a weekly average of 54 hours, calculated using a rolling period of up to six (6) weeks, which rolls by no more than 7 consecutive calendar days at any time. (ii) Each licensee shall state, in its FFD policy and procedures required by § 26.27 and § 26.203(a) and (b), with which requirements the licensee is complying: the minimum days off requirements in § 26.205(d)(3) or maximum average work hours requirements in § 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 E:\FR\FM\26APP1.SGM 26APP1 23218 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules individuals’ work hours are subject to the requirements of § 26.205(d)(3) or in any averaging period of up to 6 weeks, using the same averaging period durations that the licensees use to control the individuals’ work hours, while the individuals’ work hours are subject to the requirements of § 26.205(d)(7); * * * * * 4. Section 26.207 is amended by revising paragraphs (a) introductory text and (b) to read as follows: § 26.207 Waivers and assessments. (a) Waivers. Licensees may grant a waiver of one or more of the work hour controls in § 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 § 26.205(d)(3) or the maximum average work hours requirements of § 26.205(d)(7), licensees may exclude shifts worked by security personnel during the actual conduct of NRCevaluated force-on-force tactical exercises when calculating the individual’s number of days off or hours worked, as applicable. * * * * * 5. Section 26.209 is amended by revising paragraph (a) to read as follows: § 26.209 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 § 26.205(d)(1), the individual has had the minimum breaks required in § 26.205(d)(2) or minimum days off required in § 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 § 26.205(d)(7). * * * * * Dated at Rockville, Maryland, this 13th day of April, 2011. For the Nuclear Regulatory Commission. Michael F. Weber, Acting Executive Director for Operations. [FR Doc. 2011–9925 Filed 4–25–11; 8:45 am] BILLING CODE 7590–01–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 Self-declarations. jlentini on DSKJ8SOYB1PROD with PROPOSALS (a) If an individual is performing, or being assessed for, work under a waiver of one or more of the requirements contained in § 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 § 26.4(a), except if the individual is required to continue performing those duties under other requirements of 10 CFR part 26. If the subject individual must continue performing the duties listed in § 26.4(a) until relieved, the licensee shall immediately take action to relieve the individual. * * * * * 6. Section 26.211 is amended by revising paragraphs (b)(2)(iii) and (d) to read as follows: [Docket No. FAA–2011–0385; Directorate Identifier 2010–NM–256–AD] § 26.211 During a Back-up Control Module (BCM) retrofit campaign * * *, some BCMs have been found with loose gyrometer screws. * * * When the aeroplane is in control back up configuration (considered to be an extremely remote case), an oscillation of the BCM output order may cause degradation of the BCM piloting laws, potentially leading to erratic motion of the rudder and possible Fatigue assessments. * * * * * (b) * * * (2) * * * (iii) Evaluated or approved a waiver of one or more of the limits specified in § 26.205(d)(1) through (d)(5)(i) and (d)(7) for any of the individuals who VerDate Mar<15>2010 16:08 Apr 25, 2011 Jkt 223001 RIN 2120–AA64 Airworthiness Directives; Airbus Model A330–200, A330–300, A340–300, A340– 500, and A340–600 Series Airplanes Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). AGENCY: We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: SUMMARY: PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 subsequent impact on the Dutch Roll, which constitutes an unsafe condition. * * * * * * * * [S]everal Pedal Feel Trim Units (PFTU) have been found with loose or broken screws during the accomplishment of maintenance tasks on A330 fitted with electrical rudder and A340–600. The loose or failed screws could lead to the loss of the coupling between the Rotary Variable Differential Transducer (RVDT) shaft and the PFTU shaft, and consequently to a potential rudder runaway when the BCM is activated. * * * * * The unsafe condition is loss of control of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by June 10, 2011. ADDRESSES: You may send comments by any of the following methods: • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments. • Fax: (202) 493–2251. • Mail: U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • Hand Delivery: U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Airbus SAS— Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; e-mail airworthiness.A330–A340@airbus.com; Internet http://www.airbus.com. You may review copies of the referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425–227– 1221. Examining the AD Docket You may examine the AD docket on the Internet at http:// www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647–5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. E:\FR\FM\26APP1.SGM 26APP1

Agencies

[Federal Register Volume 76, Number 80 (Tuesday, April 26, 2011)]
[Proposed Rules]
[Pages 23208-23218]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9925]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / 
Proposed Rules

[[Page 23208]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 26

RIN 3150-AI94
[NRC-2011-0058]


Alternative to Minimum Days Off Requirements

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission) 
is proposing to amend its regulations governing the fitness for duty of 
workers at nuclear power plants. These amendments would allow holders 
of nuclear power plant operating licenses the option to use a different 
method from the one currently 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: Submit comments by May 26, 2011. Comments received after this 
date will be considered if it is practical to do so, but the Commission 
is able to ensure consideration only for comments received before this 
date. Requests for extension of the comment period will not be granted.

ADDRESSES: Please include Docket ID NRC-2011-0058 in the subject line 
of your comments. For instructions on submitting comments and accessing 
documents related to this action, see ``Submitting Comments and 
Accessing Information'' in the SUPPLEMENTARY INFORMATION section of 
this document.
    You may submit comments by any one of 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: Carol.Gallagher@nrc.gov.
     Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attn: Rulemakings and 
Adjudications Staff.
     E-mail comments to: Rulemaking.Comments@nrc.gov. If you do 
not receive a reply e-mail confirming that we have received your 
comments, contact us directly at 301-415-1677.
     Hand-deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays 
(telephone: 301-415-1677).
     Fax comments to: Secretary, U.S. Nuclear Regulatory 
Commission at 301-415-1101.

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: Howard.Benowitz@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Submitting Comments and Accessing Information
II. Background
    A. NRC's Current Regulations
    B. Stakeholder Reaction to the Current Fitness for Duty 
Requirements
    C. Public Meetings and Commission Direction
III. Description of the Proposed Rule
    A. Maximum Weekly Average of 54 Hours Worked Over a 6-Week 
Rolling Window
    B. Proposed Alternative to the Minimum Days Off Requirements
    C. Applicability
IV. Section-by-Section Analysis
V. Specific Request for Comment
VI. Availability of Documents
VII. Criminal Penalties
VIII. Compatibility of Agreement State Regulations
IX. Plain Language
X. Voluntary Consensus Standards
XI. Finding of No Significant Environmental Impact
XII. Paperwork Reduction Act Statement
XIII. Regulatory Analysis
XIV. Regulatory Flexibility Certification
XV. Backfit Analysis

I. Submitting Comments and Accessing Information

    Comments submitted in writing or in electronic form will be posted 
on the NRC Web site and on the Federal rulemaking Web site, http://www.regulations.gov. Because your comments will not be edited to remove 
any identifying or contact information, the NRC cautions you against 
including any information in your submission that you do not want to be 
publicly disclosed. The NRC requests that any party soliciting or 
aggregating comments received from other persons for submission to the 
NRC inform those persons that the NRC will not edit their comments to 
remove any identifying or contact information, and therefore, they 
should not include any information in their comments that they do not 
want publicly disclosed.
    You can access publicly available information related to this 
document using the following methods:
     NRC's Public Document Room (PDR): The public may examine 
and have copied, for a fee, publicly available documents at the NRC's 
PDR, Room 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 electronically at the NRC's Electronic Reading Room at 
http://www.nrc.gov/reading-rm/adams.html. From this page, the public 
can gain entry into ADAMS, which provides text and image files of NRC's 
public documents. If you do not have access to ADAMS or if there are 
problems in accessing the documents located in ADAMS, contact the NRC's 
PDR reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail to 
PDR.Resource@nrc.gov.
     Federal Rulemaking Web Site: Public comments and 
supporting materials related to this proposed rulemaking can be found 
at http://www.regulations.gov by searching on Docket ID NRC-2011-0058.

II. Background

A. NRC's Current Regulations

    On March 31, 2008, the NRC adopted 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

[[Page 23209]]

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 Current Fitness for Duty Requirements

    On September 3, 2010, the Nuclear Energy Institute (NEI) submitted 
a petition for rulemaking (PRM-26-5). In PRM-26-5, the NEI states that 
``the new rule has resulted in consequences not originally envisioned 
when the rule was developed and that these consequences have diminished 
the safety benefits of the rule.'' The NEI states 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 create an 
undue level of complexity and inflexibility in managing worker fatigue. 
These regulations mandate a specified minimum average number of days 
off per week, averaged over a fixed time period. The minimum average 
number of days off depends on the duties the individual performs and, 
for Sec.  26.205(d)(3), the length of an individual's shift schedule 
(i.e., whether the individual is working 8-, 10- or 12-hour shifts).
    The NEI requests, 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 proposes 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 proposes 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 part 26. The request reiterates the NEI's opinion that 
the regulations that govern fatigue management impede ``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 
requests 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 requests 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 are comfortable with the current minimum days 
off requirements, the stakeholders at this public meeting claimed that 
the unintended consequences have diminished the safety benefits of the 
fatigue management provisions of 10 CFR part 26 and expressed the need 
for an alternative that is 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 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 current 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 current 
requirements.
    On March 24, 2011, the Commission issued a Staff Requirements 
Memorandum 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 other issues related to the 
petitions for rulemaking, other changes to 10 CFR part 26, and comments 
received in this rulemaking proceeding that are outside the limited 
scope of this rulemaking, in a separate rulemaking effort. The 
Commission also directed the staff to expedite this rulemaking and 
provide a 30-day public comment period for this proposed rule instead 
of the typical 75-day public comment period.

III. Description of the Proposed Rule

A. Maximum Weekly Average of 54 Hours Worked Over a 6-Week Rolling 
Window

    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. Currently, Subpart I of 10 CFR part 26 
requires nuclear power plant licensees to manage cumulative fatigue 
primarily by providing 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 would be to 
establish a requirement to limit actual hours worked instead of 
mandating the number of days off that individuals receive. A limit on 
actual hours worked, when applied to schedules that require regular 
shift coverage, would limit the number of work hours that can 
contribute to cumulative fatigue and, as a practical matter, result in 
periodic days off for recovery rest. A schedule resulting in a weekly 
average of 54 hours worked, calculated using a rolling period of up to 
6 weeks, would be 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 
current minimum days off requirements of Sec.  26.205(d)(3) could 
average as many as 54 hours of

[[Page 23210]]

work per week. However, the NEI has indicated that implementation of 
the minimum days off requirements has 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 a rolling window (i.e., averaging period) of up to 6 
weeks would limit 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 would also remain 
consistent with the averaging duration and technical basis of the 
minimum days off requirements, as described in the Statement of 
Considerations (SOC) for the 2008 10 CFR part 26 final rule. In 
addition, this alternative would not depend on the length of an 
individual's shift schedule and would eliminate 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 would 
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.
    In summary, the maximum number of hours that could be worked under 
the proposed alternative approach would be comparable to the maximum 
number of hours that can be worked by most individuals under the 
current 10 CFR part 26 minimum days off requirements, except that the 
alternative requirement would provide for greater simplicity and 
flexibility. This proposed approach could be used only in place of the 
minimum days off requirements in Sec.  26.205(d)(3) and would be 
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 determination that the 
proposed alternative would be 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 would not be able to subject one group of individuals under 
Sec.  26.4(a) to the requirements in Sec.  26.205(d)(3) and another 
group of individuals under Sec.  26.4(a) to proposed Sec.  26.205(d)(7) 
requirements. Allowing licensees to implement the minimum days off and 
proposed alternative requirements simultaneously would also create a 
burden for NRC oversight and inspections.
    Although the rolling schedule required under the proposed 
alternative approach would limit the number of consecutive extended 
work weeks and thereby limit the potential for cumulative fatigue, 
there are unusual potential circumstances in which the proposed 
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 allowable hours, which would 
likely result in cumulative fatigue. However, the industry has stated 
that these unusual schedules are improbable. The NRC believes that this 
proposed alternative approach, together with other aspects of the rule 
that will remain unchanged, would 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. Proposed Alternative to the Minimum Days Off Requirements

    The NRC proposes to create a new Sec.  26.205(d)(7) that would 
contain the proposed alternative. The proposed rule would allow 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 current 
rule's minimum days off requirements in Sec.  26.205(d)(3). The NRC is 
not proposing to remove the current Sec.  26.205(d)(3) minimum days off 
requirements and mandate that all licensees instead adopt new maximum 
average work hour requirements. Some licensees may be satisfied with 
the current 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 preparation of 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 
propose the maximum weekly average of 54 work hours, averaged over a 
rolling window of up to 6 weeks, as an alternative to the minimum days 
off requirements.

C. Applicability

    Consistent with the current rule's minimum days off requirements in 
Sec.  26.205(d)(3), the proposed alternative maximum average work hours 
provisions would apply to all periods of operations, with several 
specified exceptions: during force-on-force exercises and plant 
emergencies and for security personnel when they are needed to maintain 
the common defense and security. In those limited circumstances, 
special provisions, described below, would apply. In addition, 
licensees currently have the option under Sec.  26.205(d)(4) to comply 
with the minimum days off requirements in either Sec.  26.205(d)(3) or 
Sec.  26.205(d)(4) during unit outages when the affected individuals 
are working on outage activities, and have the option under Sec.  
26.205(d)(5) to comply with the minimum days off requirements in either 
Sec.  26.205(d)(3) or Sec.  26.205(d)(5) during unit outages, security 
system outages, or increased threat conditions. Under the proposed 
rule, licensees also would have the option to comply with the maximum 
average work hours requirements under the above conditions. The reasons 
that the Commission permits the exceptions and options involving the 
minimum days off requirements are explained in the SOC for the 2008 10 
CFR part 26 final rule. Because the proposed optional approach would 
offer licensees an equivalent minimum days off alternative that is 
equally effective at managing cumulative fatigue, the 2008 10 CFR part 
26 final rule SOC also provides the justification for why the proposed 
alternative would apply to the exceptions and options described herein.
    The current rule, in Sec.  26.205(d)(4), offers licensees the 
option to apply different minimum days off requirements during the 
first 60 days of a unit outage for individuals working on outage 
activities. During this part of outages, 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. The regulation requires 
licensees who choose the outage option to provide affected individuals 
with a fixed number of days off over a 15-day period or 7-day period, 
depending on the duties performed by the individuals. Similarly, the 
cumulative fatigue management provisions for security personnel in 
current Sec.  26.205(d)(5)(i) allow licensees, during the first 60 days 
of a unit outage or a planned security system outage, the option to 
comply with the minimum days off

[[Page 23211]]

requirements in Sec.  26.205(d)(3) or provide security personnel with a 
fixed number of days off over a 15-day period. Under proposed Sec.  
26.205(d)(4) and (d)(5)(i), licensees that choose the alternative 
maximum average work hours approach during non-outage periods would 
have the option to use the proposed alternative or the fixed number of 
days off approaches during the first 60 days of outages.
    During the first 60 days of an unplanned security system outage or 
increased threat condition, current Sec.  26.205(d)(5)(ii) provides a 
discretionary exception from the minimum days off requirement in Sec.  
26.205(d)(3) and (d)(5)(i) so that security personnel subject to the 
work hour requirements would not be required to meet the minimum days 
off requirements. The proposed Sec.  26.205(d)(5)(ii) would permit 
licensees who implement the maximum average work hours approach during 
non-outage periods to not meet the proposed Sec.  26.205(d)(7) 
requirements during the first 60 days of an unplanned security system 
outage or increased threat condition.
    Section 26.207(b) of the current regulations relieves licensees 
from the minimum days off requirements of Sec.  26.205(d)(3) by 
allowing licensees to exclude shifts worked by security personnel 
during the actual conduct of NRC-evaluated force-on-force tactical 
exercises when calculating the individuals' required number of days 
off. The proposed rule would permit licensees who implement the 
proposed alternative during non-outage periods to exclude from the 
proposed Sec.  26.205(d)(7) calculations the hours worked by security 
personnel during the actual conduct of NRC-evaluated force-on-force 
tactical exercises.
    Current Sec.  26.207(c) provides a licensee relief from the work 
hour control requirements of Sec.  26.205 for security personnel upon 
written notification from the NRC, for the purpose of assuring the 
common defense and security for a period the NRC defines. In the 
proposed rule, licensees would also be relieved from the requirements 
of proposed Sec.  26.205(d)(7) in this situation.
    As stated in current Sec.  26.207(d), a licensee need not meet the 
work hour controls, including the minimum days off requirements, during 
declared emergencies, as defined in the licensee's emergency plan. 
Under the proposed rule, consistent with the current approach for 
minimum days off requirements during declared emergencies, licensees 
would not need to meet the requirements of the proposed Sec.  
26.205(d)(7) during the period of the declared emergency.
    The NRC 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,'' dated September 24, 2009, to give 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 and not cite licensees 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. The EGM 
refers to Sec.  26.205(d) generally, and therefore, the requirements in 
proposed Sec.  26.205(d)(7) would also fall under the enforcement 
discretion described by EGM-09-008.

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 proposes to make 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 proposed Sec.  26.205(d)(7).

Section 26.203(d)(2)

    Section 26.203(d)(2) currently 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. Because 
licensees that implement the alternative would need to show inspectors 
that individuals subject to the new work hour controls have not 
exceeded the average weekly work hour limit, inspectors would need to 
know the averaging periods used by the licensee. Therefore, the NRC 
proposes to amend Sec.  26.203(d)(2) to include the requirement that 
licensees implementing the requirements in proposed 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 would also need to 
retain records of shift schedules to ensure compliance with the 
requirements in Sec.  26.205(c) and Sec.  26.205(d)(2).

Section 26.203(e)(1)

    Current Sec.  26.203(e)(1) requires 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). Section 
26.203(e)(1) would be revised in the proposed rule to require licensees 
to also report the instances when the licensee waived the requirements 
in proposed 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 proposed rule 
would require licensees to include whether the alternative requirements 
in proposed 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 proposes to add a new Sec.  
26.205(d)(7) and make conforming changes to existing 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 
proposed Sec.  26.205(d)(7).

Section 26.205(b)(5)

    Section 26.205(b)(5) currently 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

[[Page 23212]]

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 proposed rule would 
revise Sec.  26.205(b)(5) to exclude these incidental duties from hours 
worked under proposed Sec.  26.205(d)(7).

Section 26.205(d)(3)

    Currently, Sec.  26.205(d)(3) requires licensees to ensure that 
subject individuals have, at minimum, the days off as specified in this 
section. Under the proposed rule, licensees would have the option of 
either complying with the minimum days off requirements in Sec.  
26.205(d)(3) or the alternative requirements in proposed Sec.  
26.205(d)(7).

Section 26.205(d)(4)

    Current Sec.  26.205(d)(4) provides a limited discretionary 
exception from the minimum day 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, 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 proposes to revise Sec.  26.205(d)(4) to 
allow licensees that choose the maximum average work hours alternative 
during non-outage periods to have the option to use the proposed 
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) currently 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 unplanned 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. Proposed Sec.  
26.205(d)(5)(i) would allow licensees that choose the maximum average 
work hours alternative during non-outage periods to have the option to 
use the proposed 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 unplanned security system outage.

Section 26.205(d)(5)(ii)

    Current Sec.  26.205(d)(5)(ii) provides a discretionary exception 
from the minimum days off requirements of Sec.  26.205(d)(3) for 
security personnel during the first 60 days of an unplanned security 
system outage or an increased threat condition. Individuals 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). Proposed Sec.  26.205(d)(5)(ii) would 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), Sec.  26.205(d)(5)(i), or proposed 
Sec.  26.205(d)(7) for security personnel.

Section 26.205(d)(7)

    This would be a new section governing maximum average work hours 
for subject individuals, with which licensees could voluntarily choose 
to comply as an alternative to complying with comparable provisions in 
Sec.  26.205(d)(3). Licensees who choose to comply with this 
alternative would 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 proposed maximum average work hours 
requirements in this section would be 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 proposed maximum 
average work hours alternative would apply to all individuals described 
in Sec.  26.205(a) without regard for their assigned duties or the 
length of their shift schedules.

Section 26.205(d)(7)(i)

    Licensees who elect to implement the requirements of proposed Sec.  
26.205(d)(7)(i) would 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 would be computed over a rolling period of 
up to 6 weeks. Licensees would roll (i.e., adjust forward) the 
beginning and end times and dates of their averaging periods (of up to 
6 weeks) by no more than 7 consecutive calendar days at any time. 
Licensees would be expected to describe in their FFD procedures, as 
required by proposed Sec.  26.205(d)(7)(ii), the beginning and end 
times and days of the week for the averaging periods.

Section 26.205(d)(7)(ii)

    In proposed Sec.  26.205(d)(7)(ii), each licensee would need to 
explicitly state, in its FFD policies and procedures required by 10 CFR 
26.27 and 10 CFR 26.203, with which requirements it is complying: The 
minimum days off provisions in Sec.  26.205(d)(3) or the maximum 
average work hours requirements in proposed Sec.  26.205(d)(7). 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.
    Arguably, the NRC's regulations would already require the licensee 
to document its decision to comply with the alternative to the minimum 
days off requirements in proposed Sec.  26.205(d)(7). 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. However, to avoid 
ambiguity on this matter, the NRC would make clear in Sec.  
26.205(d)(7)(ii) the licensee's (and applicant's) regulatory obligation 
to document in its

[[Page 23213]]

FFD policies and procedures, required by Sec.  26.27 and Sec.  
26.203(a) and (b), including the process for implementing the work hour 
controls, with which requirements it will comply: The requirements in 
Sec.  26.205(d)(3) or proposed Sec.  26.205(d)(7).
    The cumulative fatigue management requirements with which each 
licensee elects to comply, either the requirements in Sec.  
26.205(d)(3) or proposed Sec.  26.205(d)(7), would be the legally-
binding requirements for that licensee for all individuals subject to 
the work hour controls of Sec.  26.205. For example, licensees would 
not be able to subject one group of individuals under Sec.  26.4(a) to 
the requirements in Sec.  26.205(d)(3) and another group of individuals 
under Sec.  26.4(a) to proposed Sec.  26.205(d)(7) requirements. 
Implementing the minimum days off and proposed alternative requirements 
simultaneously would create a burden for NRC inspectors because before 
they could even begin their inspection review, the inspectors would 
have to ascertain which groups of individuals were subject to which set 
of requirements. The review itself would then be more burdensome 
because the review would include additional steps depending on the 
applicable individuals and requirements. In addition, the NRC assessed 
the proposed alternative as equivalent to the minimum days off 
requirements considering 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. 
Nevertheless, licensees would be free to switch to the other set of 
legally-binding requirements, so long as the requirement of proposed 
Sec.  26.205(d)(7)(ii) was met.

Section 26.205(e)(1)(i)

    Currently, Sec.  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 proposes to 
amend Sec.  26.205(e)(1)(i) to require 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 averaging period of up to 6 weeks. The duration of the averaging 
periods would be the same duration that the licensees use to control 
the individuals' work hours to comply with the requirements of proposed 
Sec.  26.205(d)(7).

10 CFR 26.207 Waivers and Exceptions

    Section 26.207 provides the criteria that licensees must meet to 
authorize waivers and enact exceptions from the work hour requirements 
in Sec.  26.205(d)(1) through (d)(5)(i). The NRC proposes to make 
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 hours worked requirements in proposed Sec.  
26.205(d)(7).

Section 26.207(a)

    Section 26.207(a) permits licensees to authorize waivers from the 
work hour requirements in Sec.  26.205(d)(1) through (d)(5)(i) for 
conditions that meet the two criteria specified in Sec.  26.207(a). 
Section 26.207(a) would be revised in the proposed rule to authorize 
licensees to grant waivers from the work hour requirements in proposed 
Sec.  26.205(d)(7) if the criteria in Sec.  26.207(a) are met.

Section 26.207(b)

    Current Sec.  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 proposed rule would amend Sec.  
26.207(b) to permit licensees to exclude from the maximum average work 
hours requirements of proposed 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 proposes to make 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 hours worked 
requirements in proposed Sec.  26.205(d)(7).

Section 26.209(a)

    Section 26.209(a) would be amended in the proposed rule to address 
the situation when an individual is performing, or being assessed for, 
work under a waiver of the requirements contained in proposed 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. As in the current 
Sec.  26.209(a), 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 10 CFR part 26. 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 currently requires licensees to conduct fatigue 
assessments under several conditions. The NRC proposes to make 
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 hours worked requirements in proposed 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 proposed rule 
would amend 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 proposed 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)

    Current Sec.  26.211(d) prohibits licensees from concluding that 
fatigue has not degraded or will not degrade the individual's ability 
to safely and

[[Page 23214]]

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 proposes to amend 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. Specific Request for Comment

    The NRC is seeking advice and recommendations from the public on 
this proposed rule. The NRC will consider all comments received within 
the limited scope of this proposed rulemaking and address them in the 
final rule. We are particularly interested in comments and supporting 
rationale from the public on the following issue: Would the alternative 
approach provide comparable assurance of the management of cumulative 
fatigue as the current minimum days off requirements?

VI. Availability of Documents

    The following table lists documents that are related to this 
proposed rule and available to the public and indicates how they may be 
obtained. See Submitting Comments and Accessing Information of the 
SUPPLEMENTARY INFORMATION section on the physical locations and Web 
sites where the documents may be accessed.

----------------------------------------------------------------------------------------------------------------
                                                                                      Electronic Reading Room
                 Document                    PDR                 Web                          (Adams)
----------------------------------------------------------------------------------------------------------------
U.S. Nuclear Regulatory Commission,             X   ............................  ML083450028
 Regulatory Guide 5.73, ``Fatigue
 Management For Nuclear Power Plant
 Personnel'' (March 2009).
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).
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 an       X   ............................  ML110390077
 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.
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.
----------------------------------------------------------------------------------------------------------------

VII. Criminal Penalties

    For the purposes of Section 223 of the Atomic Energy Act (AEA), as 
amended, the NRC is issuing this proposed rule that would amend 10 CFR 
part 26 under one or more of Sections 161b, 161i, or 161o of the AEA. 
Willful violations of the rule would be subject to criminal 
enforcement. Criminal penalties as they apply to regulations in 10 CFR 
part 26 are discussed in Sec.  26.825.

[[Page 23215]]

VIII. 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 proposed 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.

IX. Plain Language

    The Plain Writing Act of 2010 (Pub. L. 11 1-274) requires Federal 
agencies to write documents in a clear, concise, well-organized manner 
that also follows other best practices appropriate to the subject or 
field and the intended audience. Although regulations are exempt under 
the Act, the NRC is applying the same principles to its rulemaking 
documents. Therefore, the NRC has written this document, including the 
proposed amended and new rule language, to be consistent with the Plain 
Writing Act. In addition, where existing rule language must be changed, 
the NRC has rewritten that language to improve its organization and 
readability. The NRC requests comment on the proposed rule specifically 
with respect to the clarity and effectiveness of the language used. 
Comments should be sent to the NRC as explained in the ADDRESSES 
caption of this document.

X. Voluntary Consensus Standards

    The NRC proposes 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 would be 
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 proposed 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 proposal to adopt the Government-unique standard in this 
proposed rule.

XI. Finding of No Significant Environmental Impact

    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 proposed rule, if adopted, would 
not be a major Federal action significantly affecting the quality of 
the human environment and, therefore, an environmental impact statement 
is not required. This proposed rule would allow licensees of nuclear 
power reactors to voluntarily use a different method from the one 
currently 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 would 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 would provide 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 proposed 
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 allowable hours, which would 
likely result in cumulative fatigue. However, the industry has stated 
that these unusual schedules are improbable. The NRC believes that this 
proposed alternative approach, together with other aspects of the rule 
that will remain unchanged, would 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 proposed alternative is expected to reduce 
scheduling constraints on certain safety-beneficial practices. Because 
the NRC's regulatory objective would continue to be met under the 
alternative adopted in this proposed rule, there should be no change in 
environmental impacts, during operation or while the nuclear power 
plant is in shutdown, as compared with the environmental impact of the 
current rule.
    The primary alternative to this action would be 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 in the current rule, as compared 
with the alternative to the minimum days off requirements under the 
proposed rule. In addition, individuals subject to minimum days off 
requirements could personally believe that their quality of life and 
work conditions are less under the no-action alternative, as compared 
with the alternative maximum average work hours requirements that could 
be selected under the proposed rule.
    The no-action alternative would provide 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 would be allowed to use under the alternative 
to the minimum days off requirements under the proposed rule.
    For these reasons, the NRC concludes that this rulemaking would not 
have a significant adverse impact on the environment. This discussion 
constitutes the environmental assessment for this proposed rule. 
However, public stakeholders should note that the NRC is seeking public 
participation. Comments on any aspect of this environmental assessment 
may be submitted to the NRC as indicated under the ADDRESSES section.

XII. Paperwork Reduction Act Statement

    The public burden for this information collection is estimated to 
be 257 hours, which is insignificant. 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.

Abstract

    This proposed rule would allow holders of nuclear power plant

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operating licenses the option to use a different method than the one 
currently 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. Licensees using the alternative method would 
calculate the number of hours worked by applicable individuals, with a 
per-person limit of a maximum weekly average of 54 hours worked over a 
6-week rolling window. Burden would not increase for ongoing 
requirements, such as scheduling work hours, recording calculations of 
work hours, or recording and trending problems regarding work hours. 
Licensees choosing to use the alternate method would incur a one-time 
implementation burden to revise FFD procedures, modify their work hour 
tracking systems and individual work scheduling systems, and state in 
their FFD policies which method of fatigue management is being used.
    The NRC is seeking public comment on the potential impact of the 
information collections contained in this proposed rule and on the 
following issues:
    1. Is the proposed information collection necessary for the proper 
performance of the functions of the NRC, including whether the 
information will have practical utility?
    2. Is the estimate of burden accurate?
    3. Is there a way to enhance the quality, utility, and clarity of 
the information to be collected?
    4. How can the burden of the information collection be minimized, 
including the use of automated collection techniques?
    The public may examine and have copied, for a fee, publicly 
available documents, including the NRC Form 670, ``Information Required 
for Making an Insignificant Burden Determination To Support a Decision 
That OMB Clearance Is Not Required,'' at the NRC's PDR, One White Flint 
North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. The NRC 
Form 670 and proposed rule are available at the NRC's Web site: http://www.nrc.gov/public-involve/doccomment/omb/index.html for 30 days after 
the signature date of this notice.
    Send comments on any aspect of these proposed information 
collections, including suggestions for reducing the burden and on the 
above issues, by May 26, 2011, to the Information Services Branch, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, or by e-mail 
to Infocollects.Resource@nrc.gov; and to Christine J. Kymn, Desk 
Officer, Office of Information and Regulatory Affairs, NEOB-10202 
(3150-0146), Office of Management and Budget, Washington, DC 20503. 
Comments received after this date will be considered if it is practical 
to do so, but assurance of consideration cannot be given to comments 
received after this date. You may also e-mail comments to Christine_J._Kymn@omb.eop.gov or comment by telephone at 202-395-4638.
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.

XIII. Regulatory Analysis

    The NRC has not prepared a full regulatory analysis for this 
proposed rulemaking. The NRC has determined that the proposed maximum 
average work hours requirement would provide 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 would maintain reasonable assurance that persons 
subject to work hour controls can safely and competently perform their 
assigned duties and therefore meets the intent of the current 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 proposed approach would offer licensees an alternative that 
is generally equivalent to the current minimum days off requirements in 
managing cumulative fatigue, the 2008 final rule regulatory analysis 
also supports this proposed rule.
    Furthermore, both nuclear power plant licensees and individuals 
subject to the NRC's existing requirements in 10 CFR 26.205(d)(3) 
governing minimum days off would derive substantial benefits if the NRC 
were to adopt an alternative approach for controlling cumulative 
fatigue through maximum average work hours that could be voluntarily 
adopted by those licensees. In addition, the NRC concludes that 
providing an alternative would maintain 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 
information presented by two petitioners for rulemaking seeking changes 
to the work hour controls in 10 CFR 26.205, NEI's request for 
enforcement discretion of those same regulatory provisions in 10 CFR 
26.205, evidence gathered from stakeholders at the three public 
meetings, and analysis performed by the NRC staff and explained in a 
January 4, 2011, memorandum and a February 28, 2011, memorandum to the 
Commission. In these memoranda, 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 did not 
see any value in preparing a more detailed regulatory analysis for this 
proposed rule. The NRC requests public comment on this draft regulatory 
analysis. Comments on the draft regulatory analysis may be submitted to 
the NRC as indicated under the ADDRESSES section of this document.

XIV. Regulatory Flexibility Certification

    Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC 
certifies that this proposed rule will not, if promulgated, have a 
significant economic impact on a substantial number of small entities. 
This proposed 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).

XV. Backfitting

    The NRC has determined that the Backfit Rule, 10 CFR 50.109, would 
not apply to this proposed rule, nor would the proposed rule be 
inconsistent with any of the finality provisions in 10 CFR part 52. The 
proposed rule, in 10 CFR 26.205(d)(7), would provide nuclear power 
plant licensees with an alternative for compliance with the existing 
controls in 10 CFR 26.205(d)(3) governing minimum days off for certain 
nuclear power plant workers. Licensees would be free to comply with 
either the existing rule's requirements governing minimum days off or 
with the proposed alternative requirements in 10 CFR 26.205(d)(7). The 
NRC concludes that a backfit analysis would not be required for this 
proposed rule because this proposed rule would not contain any 
provisions that constitute backfitting.
    The proposed rule would not be inconsistent with any finality 
provisions

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in 10 CFR part 52. No standard design certification rule or standard 
design approval issued under 10 CFR part 52, or