RULEMAKING ISSUE 

INFORMATION 

January 4, 2011 SECY-11-0003

FOR: The Commissioners 

FROM: R. W. Borchardt 

 Executive Director for Operations 

SUBJECT: STATUS OF ENFORCEMENT DISCRETION REQUEST AND 

RULEMAKING ACTIVITIES RELATED TO 10 CFR PART 26, 

SUBPART I, “MANAGING FATIGUE” 

PURPOSE: 

To provide the Commission with a status update on current rulemaking activities pertaining to 

Title 10 of the Code of Federal Regulations (10 CFR) Part 26, “Fitness for Duty Programs,” 

Subpart I, “Managing Fatigue,” and to discuss the staff’s ongoing evaluation of the industry’s 

request for enforcement discretion. 

SUMMARY: 

The U.S. Nuclear Regulatory Commission (NRC) has received three petitions for rulemaking 

(PRMs) related to 10 CFR Part 26, Subpart I, within the past 15 months. In addition to the 

PRMs, the Nuclear Energy Institute (NEI) submitted a request for enforcement discretion 

regarding the minimum days off (MDO) provisions of Subpart I. Separate from the staff’s review 

of these activities, the staff is planning to send to the Commission a proposed rulemaking to 

include quality control/quality verification (QC/QV) personnel within the maintenance work-hour 

control provisions of 10 CFR Part 26. This paper details the staff’s plan to bundle, into the 

ongoing QC/QV rulemaking, the three PRMs and any aspects of the potential enforcement 

discretion that should be reflected in the rulemaking framework. 

CONTACTS: Mary Ann Ashley, NRR/DIRS 

 (301) 415-1073 

Tara Inverso, NRR/DPR 

(301) 415-1024 
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With regard to the NEI enforcement discretion request, this paper discusses the outcome of a 

public meeting held on November 18, 2010, in which industry stakeholders provided additional 

information to support the request. The staff intends to follow this paper with a subsequent 

paper with recommendations for the Commission on a response to NEI’s request. 

BACKGROUND: 

The staff currently has several requests from stakeholders to revise the fatigue management 

requirements covered by 10 CFR Part 26, Subpart I, “Managing Fatigue.” 

Mr. Robert N. Meyer, on behalf of the Professional Reactor Operator Society, submitted 

PRM-26-3 on October 16, 2009 (Agencywide Documents Access and Management System 

(ADAMS) Accession No. ML092960440). It requests that (1) the definition of “unit outage” be 

changed to “site outage” and (2) “site outage” be defined to read “up to one week prior to 

disconnecting the reactor unit from the grid and up to 75 percent turbine power following 

reconnection to the grid.” The comment period associated with this PRM closed on February 

10, 2010. The NRC received four comment letters, all in general support of the PRM. 

NEI submitted PRM-26-5 on September 3, 2010 (ADAMS Accession No. ML102590440). The 

stated purpose of the petition is to address “unintended consequences of the rule that have 

diminished the safety and security benefit the regulation was intended to achieve.” The petition 

requests that the NRC replace the MDO requirements in 10 CFR Part 26, Subpart I, with a 

performance-based objective and that the annual review of actual hours worked be amended to 

be required quarterly. The petition also requests that the NRC address the suspension of workhour controls as a result of acts of nature or disasters that restrict accessibility of relief 

personnel to the site. Additionally, the petition requests that the exception for plant 

emergencies at 10 CFR 26.207(d) be modified to apply as long as emergency facilities are 

activated in accordance with the licensee’s emergency plan or emergency plan implementing 

procedures. 

Separate from PRM-26-5, on September 23, 2010, NEI submitted a request for enforcement 

discretion regarding the MDO provisions of 10 CFR Part 26 (ADAMS Accession No. 

ML102710208). The request reiterates NEI’s position that the regulations governing 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 PRM26-5. 

Mr. Erik Erb, a nuclear security officer at the Nine Mile Point Nuclear Station, submitted 

PRM-26-6 on August 17, 2010 (ADAMS Accession No. ML102630127). This petition requests 

that the NRC amend 10 CFR Part 26, Subpart I, to decrease the MDO 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. 

Concurrent with the staff’s review of these submittals, the staff has been pursuing a proposed 

rulemaking to include QC/QV workers under the same Subpart I provisions as individuals who 

 
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perform maintenance functions as specified in 10 CFR 26.4(a)(4). The regulatory basis for the 

QC/QV rulemaking is complete, and this rulemaking effort has entered into the proposed rule 

development stage. 

Under the current schedule for this rulemaking, the staff would provide the proposed rule to the 

Executive Director for Operations by June 30, 2011 (WITS item number 200700281). 

Additionally, the staff has been assessing unintended consequences of the current Part 26 rule 

consistent with the Staff Requirements Memorandum (SRM)-SECY-09-0183, “Proposed 

Modification for Including Quality Control and Quality Verification Personnel within the Scope of 

Subpart I of 10 CFR Part 26,” dated June 1, 2010 (ADAMS Accession No. ML101520654). In 

this SRM, the Commission directed the staff to “engage stakeholders and review the practical 

application of Part 26 subpart I including the advent of any unintended consequences that might 

undermine the purpose of the rule.” 

DISCUSSION: 

Enforcement Discretion Request: 

The September 23, 2010, NEI letter requesting enforcement discretion from certain 

requirements of 10 CFR Part 26 parallels NEI’s rulemaking petition (PRM-26-5). The 

rulemaking petition seeks to amend 10 CFR Part 26, Subpart I, by replacing the rule’s MDO 

requirements with a performance objective for managing cumulative fatigue. The industry’s 

proposed performance objective is to maintain work hours at or below 54 hours per week, 

averaged over a quarter. Similarly, the request for enforcement discretion asks that licensees 

be granted enforcement discretion for not meeting the MDO requirements detailed in 

10 CFR 26.205(d)(3) provided that they implement the performance objective proposed in the 

rulemaking petition. The request for enforcement discretion references the rationale for change 

described in the petition as the basis for the request and asks that the enforcement discretion 

remain in place until the final disposition of the petition for rulemaking. 

In evaluating the NEI-proposed approach for providing interim relief from MDO requirements 

through enforcement discretion, the staff considered the stated performance objectives of the 

existing rule, which include providing reasonable assurance that the effects of fatigue and 

degraded alertness on individuals’ abilities to safely and competently perform their duties are 

managed commensurate with maintaining public health and safety. A review of the Statement 

of Considerations (SOC) for the 2008 final rule, which described the rationale and technical 

bases concerning the safety importance of managing fatigue, indicates that the underlying basis 

of the rule remains valid under the current approach and that addressing the fatigue of workers 

in safety- and security-critical positions through regulation continues to be consistent with 

practices in other countries and other industries in the United States. (See 73 FR 16978-16987 

for an overview of the Commission’s considerations for including worker fatigue management 

provisions in the rule.)

Studies cited in the SOC as well as subsequent research results indicate that shift work disrupts 

natural sleep and wake patterns and affects the quality and duration of sleep leading to a 

decline in cognitive and motor functioning. The term ‘cumulative fatigue’ refers to these 

degradations in human performance resulting from consecutive days of restricted or poor quality 

sleep. The existing rule mitigates cumulative fatigue by requiring a minimum number of days off 
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to ensure that individuals have opportunities for recovery sleep. Recovery sleep is important 

because the research shows that when time for sleep is decreased even by small amounts 

(e.g., 1 to 1.5 hours less sleep per night), impairment becomes increasingly evident. Even small 

nightly sleep deficits allowed to accumulate over consecutive nights can cause individuals to 

show levels of impairment that are equal to those resulting from one or two nights of total sleep 

deprivation. Accordingly, the staff will seek to ensure that its recommendation to the 

Commission in response to the interim relief being requested by industry continues to focus on 

the prevention or mitigation of cumulative fatigue as a fundamental component of fatigue 

management for nuclear power plant workers. 

The staff held a public meeting on November 18, 2010, to gain a better understanding of the 

following: 

• Industry’s positions of how the various examples of unintended consequences purportedly 

arising from the MDO requirements as described in NEI’s request for enforcement discretion 

are tied to safety or security; 

• How the MDO requirements brought about the conditions described in the examples and the 

perceived unintended consequences; 

• The extent of the stated conditions throughout the industry; and 

• How the requested enforcement discretion from the MDO requirements would mitigate the 

stated adverse consequences while maintaining the objective of managing cumulative 

fatigue. 

During the meeting, industry representatives stated that implementation of MDO requirements 

has achieved its goal of ensuring that workers are provided with adequate rest periods. They 

further noted that there have been undesirable consequences, in particular the industry’s ability 

to continue practices that licensees consider beneficial, such as promoting consistency among 

work crews and the continued development of licensee staff. The industry further stated that 

the hours available for work are sufficient in almost all cases; however, they believe there 

should be more flexibility in how the time can be used. As a result of the meeting, the staff 

better understands why the industry views the existing rule as complex and lacking flexibility. 

After considering the information gained from the public meeting, the staff has determined that 

providing interim flexibility through enforcement discretion or some other mechanism may be 

appropriate while the staff evaluates the NEI petition for rulemaking. However, adopting the 

industry’s proposal for enforcement discretion presents three significant issues. First, because 

the rulemaking petition and the request for enforcement discretion ask for the same outcome, 

adopting that approach for enforcement discretion could be perceived as the NRC 

predetermining the outcome of the related ongoing rulemaking activity. Second, adopting the 

industry’s proposed approach of replacing the MDO requirements with a performance-based 

objective of a quarterly average of 54 hours per week would allow too many successive weeks 

of extended work hours to support the prevention, detection and mitigation of cumulative 

fatigue. Third, the industry’s proposed approach does not include a means for managing 

cumulative fatigue during outage periods. 

The staff is developing an alternate interim regulatory approach that will be provided to the 

Commission for consideration. As part of the development of the approach, the staff will hold a 

second public meeting on January 6, 2011, for an interactive discussion with affected 
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stakeholders on the details of the staff proposal for enforcement discretion. Specifically, the 

staff will discuss a framework that would ensure consistency with the bases and objectives of 

10 CFR Part 26 and would provide the simplicity and flexibility requested by the industry. To 

facilitate discussion at the public meeting, the specifics of the framework were provided to 

industry and include: 

• Eliminating the current MDO requirements during normal operations only. 

• Establishing an average 54-hour-per-week limit based on a maximum 6-week period rather 

than on a 13-week period as proposed by the industry. A shorter cycle is preferable 

because it will prevent an excessive number of long workweeks and remains consistent with 

the averaging duration and technical basis of the rule. 

• Establishing a complementary process or control to ensure cumulative fatigue management 

over longer durations, such as quarters as proposed by NEI. However, in contrast to the 54 

hour per week quarterly performance objective proposed by NEI, the staff’s objective is to 

establish a graded approach that will allow longer work hours for short periods of time while 

also ensuring that working long hours does not undermine fatigue management by 

becoming routine. 

• Retaining the current simple MDO requirements for outages (i.e., a fixed number of days off 

in a 7- or 15-day period) to maintain basic cumulative fatigue controls during outages. This 

differs from the industry’s request which eliminates cumulative fatigue controls for both 

normal operations and outages and would establish a performance objective applicable only 

for normal operations. 

• Retaining the restriction that the reduced days-off requirements for outages be limited to a 

period of not more than 60 days. This approach recognizes that the reduced days-off 

requirements for outages do not mitigate cumulative fatigue for indefinite periods. The 

staff’s approach retains a time limit on these reduced requirements rather than eliminating 

the restriction as proposed by the industry’s request. 

The approach the staff is developing addresses the fundamental concerns with the rule’s 

flexibility and complexity that the industry raised in their enforcement discretion request and at 

the November public meeting. Additionally, the approach parallels the industry proposal by 

eliminating the MDO requirements during normal operations and focusing on total work hours. 

However, the staff is addressing several important considerations not addressed in the 

industry’s proposal. Specifically, the industry’s request did not provide sufficient structure to 

minimize regulatory uncertainty because it does not establish clear and enforceable limits. 

Additionally, the industry has requested enforcement discretion from MDO requirements based 

solely on a performance objective. The staff believes that an approach which combines a 

defined limit on average hours worked with complementary longer term controls provides 

licensees with the flexibility they want to accommodate fluctuations in workload due to 

unanticipated conditions while establishing controls consistent with maintaining worker fitness 

for duty. 

At the January 6 public meeting the staff will also discuss with stakeholders mechanisms for 

making changes to the existing requirements. The results of the January meeting will help 

ensure that implementation of the staff’s proposed approach will not create a new set of 

unintended consequences. 

 
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On-going Monitoring of Rule Effectiveness: 

The staff will continue to interact with licensees, monitor observed human performance trends 

and issues within the industry, and evaluate the licensee prepared reviews that are required by 

10 CFR 26.205(e) as part of its on-going activities. The staff currently monitors industry human 

performance trends as documented by licensees in required reports, such as licensee event 

reports, and by the NRC inspection staff in inspection reports. These reports include aspects of 

human performance that may reflect the influences of fatigue (e.g., failure to follow a procedure, 

communication errors); however, they frequently lack sufficient information to identify fatigue as 

the underlying causal factor. The information in these reports also is not provided in ‘real time’ 

and lags, sometimes by months, due to the timing of reports and inspection cycles. Additionally, 

the most current available data may not be relevant for establishing a baseline against which 

future changes can be measured since it may contain inconsistent information from the initial 

implementation of the 2008 final rule. The staff will continue to seek and use information from 

other regulators, emerging science, and evolving industry performance to monitor the overall 

effectiveness of the rule and to indicate when changes may be needed. 

Expansion of QC/QV Rulemaking To Include All Activities Related to Fatigue Management:

As discussed, the staff has a planned rulemaking effort, which is in the proposed rule phase, to 

extend the Subpart I work hour limits to QC/QV personnel. Because PRM-26-3, PRM-26-5, and 

PRM-26-6 all request changes to the regulations that govern fatigue management, the staff will 

consider the requests together. The staff believes that considering these PRMs and any 

associated public comments within the QC/QV rulemaking would be the most efficient use of 

agency resources. This consolidated action would enable the staff to make any appropriate 

regulatory framework revisions and then extend the revised framework to the QC/QV personnel 

to help ensure a seamless integration. The staff also notes that NEI included, verbatim, the 

requests of PRM-26-3 in PRM-26-5. As a practical matter, it is not possible to evaluate each 

PRM individually without prejudging the outcome of the other. Finally, the staff will address 

within this same rulemaking the unintended consequences (as identified by internal and external 

stakeholders, including those arising from the current MDO requirements) that resulted from the 

implementation of the 2008 final rule, and engage in an open rulemaking process to identify 

alternate methods of mitigating cumulative fatigue. 

COMMITMENT: 

Incorporating these rulemaking efforts into the planned QC/QV rulemaking will require a revision 

to the existing QC/QV schedule and resources. The staff expects to send the paper to the 

Commission in March 2011 with recommendations on a response to NEI’s request. The staff 

will then submit the 10 CFR Part 26 proposed rulemaking to the Commission approximately 

16 months after receipt of the SRM associated with this paper. 

RESOURCES: 

The following full-time equivalent and contractor support resources for the QC/QV rulemaking 

are included in the fiscal year (FY) 2011 President’s Budget and for the Office of Nuclear 

Reactor Regulation (NRR), the Office of New Reactors (NRO), the Office of Nuclear Regulatory 

Research (RES), the Office of Administration (ADM), the Office of Information Services (OIS), 

and the Office of the General Counsel (OGC). FY 2012 and FY 2013 resource needs for the 
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QC/QV rulemaking, including those required for the expansion of work discussed in this paper, 

will be requested during the planning, budgeting, and performance management process. 

The resources are included in the FY 2011 President’s Budget and FY 2012 budget request as 

part of the Business Line: Operating Reactors; Product Line: Rulemaking: Product: Regulatory 

Infrastructure.

Fiscal Year Office FTE 

2011 

NRR 1.8 

RES 0.25 

NRO 0.1 

NSIR 0.0 

OGC 0.1 

ADM 0.1 

OIS 0.1 

Total 2.45 

COORDINATION: 

The Office of the General Counsel reviewed this package and has no legal objection. The Chief 

Financial Officer has reviewed this Commission paper for resource implications and has no 

objection. 

 /RA Martin Virgilio for/

 

 R. W. Borchardt 

 Executive Director 

 for Operations
The Commissioners 7 

needs for the QC/QV rulemaking, including those required for the expansion of work discussed 

in this paper, will be requested during the planning, budgeting, and performance management 

process. 

The resources are included in the FY 2011 President’s Budget and FY 2012 budget request as 

part of the Business Line: Operating Reactors; Product Line: Rulemaking: Product: Regulatory 

Infrastructure.

Fiscal Year Office FTE 

2011 

NRR 1.8 

RES 0.25 

NRO 0.1 

NSIR 0.0 

OGC 0.1 

ADM 0.1 

OIS 0.1 

Total 2.45 

COORDINATION: 

The Office of the General Counsel reviewed this package and has no legal objection. The Chief 

Financial Officer has reviewed this Commission paper for resource implications and has no 

objection. 

 /RA Martin Virgilio for/

 R. W. Borchardt 

 Executive Director 

 for Operations 

EDATS: NRR-2010-0110 

ADAMS Accession No: ML103420201 * Via E-mail 

 

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DATE 12/20/2010 01/04/2011