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[Federal Register Volume 76, Number 79 (Monday, April 25, 2011)]
[Rules and Regulations]
[Pages 22802-22804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9916]

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NUCLEAR REGULATORY COMMISSION

10 CFR Part 26

[NRC-2011-0084]
RIN 3150-AI94

Interim Enforcement Policy for Minimum Days Off Requirements

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement; revision.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission) 
is revising its Enforcement Policy to include a provision allowing 
licensees enforcement discretion if they implement an alternative 
approach to meet the NRC's requirements for managing worker fatigue at 
operating nuclear power plants. This interim policy affects licensees 
subject to the minimum days off (MDO) requirements of the NRC's fitness 
for duty regulations and will remain in place until the NRC publishes a 
revised rule associated with the MDO requirements for managing fatigue.

DATES: This revision is effective April 25, 2011. The NRC is not 
requesting comments on this revision to its Enforcement Policy at this 
time.

ADDRESSES: You can access publicly available documents 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, O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, 
Maryland 20852.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): Publicly available documents created or received at the NRC 
are available electronically at the NRC's Electronic Reading Room at 
http://www.nrc.gov/reading-rm/adams.html. From this page, the public 
can gain entry into ADAMS, which provides text and image files of NRC's 
public documents. The Enforcement Policy is also accessible via ADAMS 
accession number ML093480037. 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, 301-415-4737, or by e-
mail to [email protected].
     Federal Rulemaking Web site: This revision to the NRC's 
Enforcement Policy can be found at http://www.regulations.gov by 
searching on Docket ID NRC-2011-0084. Address questions about NRC 
dockets to Carol Gallagher, telephone: 301-492-3668, e-mail: 
[email protected].
    The NRC also maintains the Enforcement Policy on its Web site at 
http://www.nrc.gov; select Public Meetings and Involvement, then 
Enforcement, and then Enforcement Policy.

FOR FURTHER INFORMATION CONTACT: Gerry Gulla, Office of Enforcement, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; 
telephone: 301-415-2872; e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    On March 31, 2008 (73 FR 17176), the NRC published a final rule in 
the Federal Register amending Title 10 of the Code of Federal 
Regulations, Part 26, ``Fitness for Duty Programs.'' The Commission 
updated the requirements in 10 CFR part 26 by reorganizing the rule and 
adding Subpart I, ``Managing Fatigue.'' Subpart I establishes 
requirements for managing worker fatigue at operating nuclear power 
plants, which was in response to a need for clear and enforceable 
requirements for the management of worker fatigue. Although the rule 
was effective on April 30, 2008, the NRC permitted an

[[Page 22803]]

18-month implementation period for Subpart I.
    On September 3, 2010, the Nuclear Energy Institute (NEI) submitted 
a petition for rulemaking (PRM-26-5) (ML102590440). The NEI stated 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 has stated that the 
unintended consequences stem from the minimum days off requirements, 
specifically Sec.  26.205(d)(3) through Sec.  26.205(d)(6), which 
create an undue level of complexity and inflexibility in managing 
worker fatigue. The NEI requested, among other changes, that 10 CFR 
part 26, Subpart I, be amended to replace the MDO 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 rather 
than over each shift cycle. The NEI also proposed changing the annual 
assessment in Sec.  26.205(e)(1) to a quarterly assessment to provide a 
more frequent review of hours worked. The NEI proposed to eliminate the 
MDO requirements addressed at Sec.  26.205(d)(3) through Sec.  
26.205(d)(6), while the work hour limits and break requirements (Sec.  
26.205(d)(1)(i), Sec.  26.205(d)(1)(ii), Sec.  26.205(d)(1)(iii), Sec.  
26.205(d)(2)(i), and Sec.  26.205(d)(2)(ii)), would remain unchanged 
and apply during on-line and outage periods.
    Separate from PRM-26-5, on September 23, 2010, the NEI submitted a 
request for enforcement discretion regarding the MDO provisions of 10 
CFR part 26 (ML102710208). 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 
[MDO] provisions of the rule'' until the final disposition of PRM-26-5.
    The NRC held three public meetings (November 18, 2010, January 6, 
2011, and January 25, 2011), during which the staff and stakeholders 
discussed alternatives to the MDO requirements. Although some of the 
stakeholders were comfortable with the MDO requirements, most focused 
their discussion on the unintended consequences, which they claim have 
diminished the safety benefits of the rule, along with the need for an 
alternative that is simpler and would provide greater scheduling 
flexibility. The staff's goal was to develop an alternative approach 
that was responsive to the needs of stakeholders, would maintain clear 
and enforceable requirements, and would ensure that the effects of 
cumulative fatigue are appropriately managed by licensees.

Discussion

    Cumulative fatigue is caused by consecutive days of restricted or 
poor quality sleep caused by such things as shift-work, extended work 
days, and extended work weeks. Currently, Subpart I requires licensees 
to manage cumulative fatigue primarily by providing workers 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 act to 
either prevent or mitigate fatigue. An alternative method for managing 
cumulative fatigue is to establish a requirement to limit actual hours 
worked. A limit on actual hours worked, when applied to schedules that 
require regular shift coverage, limits the number of work hours that 
can contribute to cumulative fatigue and provides indirect assurance of 
periodic days off for recovery rest. A schedule resulting in a weekly 
average of 54 hours worked, calculated using a rolling window of up to 
6 weeks, is such a schedule. In general, most individuals that work 
their normal shift duration and receive only the minimum number of days 
off required under the current MDO requirements could average up to 54 
hours per week. However, the NEI has indicated that implementation of 
the MDO 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 of up to 6 weeks limits the number of consecutive weeks 
of extended work hours that an individual can work by using a 
comparable but simpler and more flexible requirement. In addition, this 
alternative eliminates the burden of tracking the number of days off 
that an individual receives in each shift cycle.
    In summary, the maximum hours that can be worked under the 
alternative approach is comparable to the maximum hours worked under 
the current 10 CFR part 26 MDO requirements, except that the 
alternative approach provides for greater simplicity and flexibility. 
This alternative is only applicable to Sec.  26.205(d)(3) and covered 
workers described in Sec.  26.4(a). Neither the NEI's PRM-26-5 nor its 
enforcement discretion request offered any comparably effective 
alternatives for Sec.  26.205(d)(4), Sec.  26.205(d)(5), and Sec.  
26.205(d)(6), nor were any identified during the public meetings; 
therefore, the staff is taking no action in regard to those 
regulations.
    The staff determined that replacing the current MDO requirements 
and requiring all licensees to adopt this interim alternative approach 
has the potential for introducing adverse consequences if those 
licensees satisfied with MDO requirements were forced to change. As a 
result, the interim enforcement policy would allow licensees to choose 
whether or not to implement this alternative approach. Licensees who 
properly implement this alternative approach will receive enforcement 
discretion for failing to meet the requirements of 10 CFR 26.205(d)(3).
    Although the rolling schedule required under the alternative 
approach limits the number of consecutive extended work weeks and 
thereby limits the potential for cumulative fatigue, there are unusual 
potential circumstances where the average can be met and the schedule 
may be fatiguing; however, the industry has stated that these unusual 
schedules are improbable. 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. Nevertheless, 
the staff believes that this alternative approach, together with other 
aspects of the rule that will remain unchanged, will provide reasonable 
assurance that licensees manage cumulative fatigue consistent with the 
protection of public health, safety, and security. The staff will 
engage licensees during regularly scheduled public meetings in the 
coming months to identify problems and lessons learned from 
implementation of the alternative approach.
    Licensees must inform the NRC of their intent to adopt the 
alternative approach, and must comply with all requirements of Subpart 
I, as applicable. The interim policy will remain in place until the NRC 
publishes a new final rule associated with the MDO requirements in 10 
CFR part 26, subpart I.
    The NRC is not requesting public comment on this alternative 
approach at this time; instead, the NRC will seek public comment on the 
effectiveness of this approach during the comment period for a proposed 
rule associated with the MDO requirements in 10 CFR part 26, subpart I.

[[Page 22804]]

Paperwork Reduction Act

    This policy statement does not contain new or amended information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the 
Office of Management and Budget (OMB), Approval Number 3150-0136.

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 
requirement unless the requesting document displays a currently valid 
OMB control number.

Congressional Review Act

    In accordance with the Congressional Review Act of 1996, the NRC 
has determined that this action is not a major rule and has verified 
this determination with the Office of Information and Regulatory 
Affairs, Office of Management and Budget.
    Accordingly, the NRC Enforcement Policy is revised to read as 
follows:

NRC Enforcement Policy

* * * * *

9.2 Enforcement Discretion for the Minimum Days Off Requirements of 
Sec.  26.205(d)(3)

    This section sets forth the interim policy that the NRC will follow 
to exercise enforcement discretion for licensees who pursue the 
alternative approach to the minimum days off (MDO) requirements of 
Sec.  26.205(d)(3). This alternative approach is consistent with the 
bases and objectives of 10 CFR part 26, specifically managing 
cumulative fatigue, and provides licensees improved simplicity and 
flexibility for work scheduling.
    This interim policy is only applicable to licensees who inform the 
NRC of their intent to adopt the alternative approach. Licensees shall 
comply with all requirements of Subpart I, as applicable, unless 
explicitly replaced or amended in this interim policy. The alternative 
approach to the MDO requirements applies to the work hours of covered 
individuals \1\ during normal (e.g., non-outage/emergency) plant 
operations. This interim policy will remain in place until the 
implementation date of a revised final rule associated with the MDO 
requirements in 10 CFR part 26, subpart I.
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    \1\ The term ``covered workers'' refers to those individuals 
indentified in Sec.  26.4(a) who are subject to the requirements in 
Sec.  26.205.
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    A licensee who informs the NRC of its intent to transition to the 
alternative approach will receive enforcement discretion, and no 
enforcement action will be taken for the violation of Sec.  
26.205(d)(3). If at any time while the licensee is implementing this 
alternate approach it does not meet the requirements, as stated in this 
interim policy, the licensee may be in violation of Sec.  26.205(d)(3) 
and subject to enforcement action. Once a licensee has transitioned to 
the alternate approach, it has the option to revert back to the 
requirement of Sec.  26.205(d)(3); however, the licensee is only 
allowed one opportunity to do so.
A. Actions and Requirements for Transition
    A licensee must inform the NRC of its intent to transition to the 
alternative approach. Notification shall be made via a letter to the 
respective Regional Administrator and shall identify the implementation 
date which will be set by the licensee. The hours worked prior to the 
implementation date, must meet the requirement of Sec.  26.205(d)(3), 
or enforcement action may be taken. Once the NRC has been notified of 
the implementation date, the licensee can commence its transition to 
the alternate approach.
    In order to receive continuous enforcement discretion once the 
alternate approach is implemented, each covered worker is limited to a 
weekly average of 54 hours worked, calculated using a rolling window of 
up to 6 weeks. This alternative is not applicable to unit outages or 
security system outages. Any instance of an individual's average weekly 
work hours exceeding the requirements for enforcement discretion may 
result in a violation of the MDO requirements. Typically, an instance 
of an isolated occurrence or occurrences with limited duration would 
generally be considered either a minor violation or a non-cited 
violation.
B. Required Actions for Transition Back to the MDO Requirement
    At any time prior to the implementation date of a revised final 
rule associated with the MDO requirements in 10 CFR part 26, subpart I, 
``Managing Fatigue,'' the licensee has the option to transition back to 
the MDO requirements. However, the licensee has this option only once. 
The licensee must submit a written notification to the respective 
Regional Administrator stating that it is reverting back to compliance 
with the MDO requirements as specified under Sec.  26.205(d)(3), and 
shall give the NRC advance notice of its transition date. There will be 
no enforcement action taken on any MDO violations that occurred while 
the licensee was implementing the alternate approach, unless the 
licensee failed to meet the requirements as stated in Section 9.2.A of 
this policy.

    Dated at Rockville, Maryland, this 19th day of April 2011.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2011-9916 Filed 4-22-11; 8:45 am]
BILLING CODE 7590-01-P
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