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.

Proposed Rules Federal Register

23208 

Vol. 76, No. 80 

Tuesday, April 26, 2011 

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 


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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 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 § 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, 

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 

§ 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 § 26.205(d)(3) 

could average as many as 54 hours of 


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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 

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. 

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 


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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 

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 

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 


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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). 

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) 

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. 

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 


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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 

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 

§ 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 


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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. 

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).X .............................................................. ML083450028 

PRM–26–5, Petition to Amend 10 CFR part 26, ‘‘Fitness-for-Duty Programs,’’ 

filed by the Nuclear Energy Institute (September 3, 2010).

X Docket ID. NRC–2010–0304 ............... ML102590440 

Anthony R. Pietrangelo on Behalf of the Nuclear Energy Institute; Notice of 

Receipt of Petition for Rulemaking, 75 FR 65249 (October 22, 2010).

.......... Docket ID. NRC–2010–0304.

Request for Enforcement Discretion filed by the Nuclear Energy Institute 

(September 23, 2010).

X .............................................................. ML102710208 

PRM–26–6, Petition to Amend 10 CFR part 26, filed by Eric Erb (August 17, 

2010).

X Docket ID. NRC–2010–0310 ............... ML102630127 

Eric Erb; Notice of Receipt of Petition for Rulemaking, 75 FR 71368 (November 23, 2010)........... Docket ID. NRC–2010–0310.

SECY–11–0003, Status of Enforcement Discretion Request and Rulemaking 

Activities Related to 10 CFR part 26, Subpart I, ‘‘Managing Fatigue’’ (January 4, 2011).

X .............................................................. ML103420201 

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).

X .............................................................. ML110390077 

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).X .............................................................. ML092380177 

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).

X .............................................................. ML110830971 

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).X .............................................................. ML103160388 

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).

X .............................................................. ML103430557 

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).

X .............................................................. ML103550089 

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).

X .............................................................. ML110280446 

Notice of Public Meeting to Discuss Alternatives to the part 26, Subpart I, 

Minimum Days Off Requirements (January 14, 2011).

X .............................................................. ML110140315 

Summary of January 25, 2011, Public Meeting to Discuss Alternatives to the 

part 26, Subpart I, Minimum Days Off Requirements.

X .............................................................. ML110340512 

Sunshine Federal Register Notice of February 8, 2011, Commission Briefing 

on the Implementation of part 26, 76 FR 5626 (February 1, 2011).

X .............................................................. ML110200295 

Transcript of February 8, 2011, Commission Briefing on the Implementation of 

part 26.

X .............................................................. ML110410169 

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 § 26.825. 


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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 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 

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 

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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Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 23217 

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 

1. The authority citation for part 26 

continues to read as follows: 

Authority: Secs. 53, 81, 103, 104, 107, 161, 

68 Stat. 930, 935, 936, 937, 948, as amended, 

sec. 1701, 106 Stat. 2951, 2952, 2953 (42 

U.S.C. 2073, 2111, 2112, 2133, 2134, 2137, 

2201, 2297f); secs. 201, 202, 206, 88 Stat. 

1242, 1244, 1246, as amended (42 U.S.C. 

5841, 5842, 5846). 

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: 

§ 26.203 General provisions. 

* * * * * 

(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; 

* * * * * 

(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: 

§ 26.205 Work hours. 

* * * * * 

(b) * * * 

(5) Incidental duties performed off 

site. Licensees may exclude from the 

calculation of an individual’s work 

hours unscheduled work performed off 

site (e.g., technical assistance provided 

by telephone from an individual’s 

home), provided the total duration of 

the work does not exceed a nominal 30 

minutes during any single break period. 

For the purposes of compliance with the 

minimum break requirements of 

§ 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 

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) 15- 

day period; and 

(ii) During the first 60 days of an 

unplanned security system outage or 

increased threat condition, licensees 

need not meet the requirements of 

§ 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 


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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 Self-declarations. 

(a) If an individual is performing, or 

being assessed for, work under a waiver 

of one or more of the requirements 

contained in § 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: 

§ 26.211 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 

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 

[Docket No. FAA–2011–0385; Directorate 

Identifier 2010–NM–256–AD] 

RIN 2120–AA64 

Airworthiness Directives; Airbus Model 

A330–200, A330–300, A340–300, A340– 

500, and A340–600 Series Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: 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: 

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 

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. 


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