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###### Nuclear Regulatory Commission

          - 10 CFR Part 26
          - [NRC-2002-0002]
          - RIN 3150-AF12

# AGENCY:

Nuclear Regulatory Commission.

# ACTION:

Final rule; correcting amendment.

# SUMMARY:

                        This document corrects a final rule appearing in the                         **Federal Register**                         on March 31, 2008 (73 FR 16965), that amended the Nuclear Regulatory Commission's (NRC's) regulations that govern fitness for duty programs. This document is necessary to correct erroneous language in the preamble and codified language of the final rule. These corrections include fixing typographical errors and cross-references, revising language in the preamble to clarify unintended discrepancies with the codified rule text, and making non-substantive changes to the rule text that do not modify any requirements in the final rule.                    

# DATES:

The correction is effective August 3, 2009, and is retroactively applicable to March 31, 2008.

# FOR FURTHER INFORMATION CONTACT:

                        Lynn Hall, Office of Nuclear Reactor                               ( print page 38327)                            Regulation, U.S. Nuclear Regulatory Commission, telephone 301-415-3759, e-mail:                         *Lynn.Hall@nrc.gov*.                    

# ADDRESSES:

Documents related to this correction can be publicly accessed using the following methods:

*Federal e-Rulemaking Portal:*                         Go to                         *http://www.regulations.gov*                         and search for documents filed under Docket ID [NRC-2002-0002]. Address questions about NRC dockets to Carol Gallagher 301-492-3668; e-mail:                         *Carol.Gallagher@nrc.gov*.                    

*NRC's Public Document Room (PDR):*                         The public may examine and have copied for a fee publicly available documents at the NRC's PDR, Public File Area O 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. 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 1-899-397-4209, 301-415-4737, or by e-mail:                         *pdr.resource@nrc.gov*.                    

# SUPPLEMENTARY INFORMATION:

This document corrects erroneous language to the preamble and codified language of the Part 26 final rule published on March 31, 2008 (73 FR 16965). Also, as published, the final regulations contain errors which may prove to be misleading and need to be clarified. The following corrects the preamble to the March 31, 2008 document.

1. On page 16972, third column, in the second paragraph, the second sentence is corrected to read as follows:

The final rule introduces the concept of “authorization” to Part 26 to refer to the status of an individual who the licensee or other entity has determined can be trusted to avoid substance abuse, and, therefore, may be permitted to have the types of access or perform the duties described in § 26.4 [FFD program applicability to categories of individuals], as a result of the process described in this subpart.

2. On page 16983, first column, in the third complete paragraph, the second sentence is corrected to read as follows:

Surveys and expert panels have suggested that tolerance for overtime is generally limited to 300-400 hours of overtime per year (ADAMS Accession No. ML090850025); (NUREG/CR-4248).

3. On page 17002, third column, in the second complete paragraph, the first sentence is corrected to read as follows:

Section 26.4(g) of the final rule amends the proposed rule to clarify the requirements that the FFD program personnel specified in this paragraph must meet.

4. On page 17007, first column, the complete sentence beginning on line 15 is corrected to read as follows:

The definition explicitly states the criterion that the term “directing” refers to an individual who is “directly involved in the execution of the work activity” and either “is ultimately responsible for the correct performance of that work activity” as opposed to, for example, the planning, development or scheduling of the activity, or whose technical input does not receive “subsequent technical review.”

5. On page 17030, third column, in the first complete paragraph, the first sentence is corrected to read as follows:

The NRC has added § 26.41(d)(2) to ensure that licensees' and other entities' contracts with C/Vs and HHS-certified laboratories permit the licensee or other entity to obtain copies of and take away any documents that auditors may need to assure that the C/V, its subcontractors, or the HHS-certified laboratory are performing their functions properly and that staff and procedures meet applicable requirements.

6. On page 17086, third column, in the second complete paragraph, the first sentence is corrected to read as follows:

Section 26.137(d)(5) requires that one of the quality control samples included in each analytical run must appear to be a donor specimen to licensee testing facility technicians.

7. On page 17088, second column, in the second complete paragraph, the fourth sentence is corrected to read as follows:

Section 26.137(e)(6)(v) requires that one sample must appear to be a donor sample to the licensee testing facility technicians.

8. On page 17092, first column, in the second complete paragraph, the third sentence is corrected to read as follows:

The cross-reference to former § 26.29 has been updated to reference § 26.37 in the final rule.

9. On page 17117, first column, in the second complete paragraph, the third sentence is corrected to read as follows:

Therefore, § 26.189(a)(1) through (a)(5) provides examples of the healthcare professionals who are qualified to address various fitness issues that may arise in an FFD program.

10. On page 17138, first column, the third complete sentence beginning on line 15 is corrected to read as follows:

If at any time during a unit outage an individual performs duties specified in § 26.4(a)(1) through (a)(4) on or for a unit that is not disconnected from the electrical grid, the individual is subject to the minimum day off requirements of § 26.205(d)(3) while the individual is performing those duties.

# List of Subjects in 10 CFR Part 26

      - Alcohol abuse
      - Alcohol testing
      - Appeals
      - Chemical testing
      - Drug abuse
      - Drug testing
      - Employee assistance programs
      - Fitness for duty
      - Management actions
      - Nuclear power reactors
      - Protection of information
      - Reporting and recordkeeping requirements

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 26.

# PART 26—FITNESS FOR DUTY PROGRAMS

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. In § 26.31, paragraphs (c)(4), (c)(5), and (d)(1) introductory text are revised to read as follows: 

§ 26.31 

* * * * *

(c) * * *

                            (4)                             *Follow-up.*                             As part of a follow-up plan to verify an individual's continued abstinence from substance abuse; and                        

                            (5)                             *Random.*                             On a statistically random and unannounced basis, so that all individuals in the population subject to testing have an equal probability of being selected and tested.                        

                            (d)                             *General requirements for drug and alcohol testing*                            —(1)                             *Substances tested.*                             At a minimum, licensees and other entities shall test for marijuana metabolite, cocaine metabolite, opiates (codeine, morphine, 6-acetylmorphine), amphetamines (amphetamine, methamphetamine), phencyclidine, adulterants, and alcohol.                        

* * * * *

3. In § 26.41, paragraph (d)(1) is revised to read as follows: 

      ( print page 38328)    
§ 26.41 

* * * * *

(d) * * *

(1) The contracts of licensees and other entities with C/Vs and HHS-certified laboratories must reserve the right to audit the C/V, the C/V's subcontractors providing FFD program services, and the HHS-certified laboratories at any time, including at unannounced times, as well as to review all information and documentation that is reasonably relevant to the audits.

* * * * *

4. In § 26.69, paragraphs (c)(3) and (d)(2) are revised to read as follows: 

§ 26.69 

* * * * *

(c) * * *

(3) If the designated reviewing official determines that a determination of fitness is required, verify that a professional with the appropriate qualifications, as specified in § 26.189(a), has indicated that the individual is fit to safely and competently perform his or her duties;

* * * * *

(d) * * *

(2) If the designated reviewing official concludes that a determination of fitness is required, verify that a professional with the appropriate qualifications, as specified in § 26.189(a), has indicated that the individual is fit to safely and competently perform his or her duties; and

* * * * *

5. In § 26.137, paragraphs (d)(2)(i), (d)(5), and (e)(6)(v) are revised to read as follows: 

§ 26.137 

* * * * *

(d) * * *

(2) * * *

(i) Colorimetric pH tests must have a dynamic range of 2 to 12 and pH meters must be capable of measuring pH to one decimal place.

* * * * *

(5) Each analytical run performed to conduct initial validity testing shall include at least one quality control sample that appears to be a donor specimen to the licensee testing facility technicians.

* * * * *

(e) * * *

(6) * * *

(v) At least one positive control, certified to be positive by an HHS-certified laboratory, which appears to be a donor specimen to the licensee testing facility technicians.

* * * * *

6. In § 26.153, paragraph (f)(3) is revised to read as follows: 

§ 26.153 

* * * * *

(f) * * *

(3) The laboratory shall maintain test records in confidence, consistent with the requirements of § 26.37, and use them with the highest regard for individual privacy.

* * * * *

Dated at Rockville, Maryland, this 27th day of July 2009.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook,

Secretary of the Commission.

[FR Doc. E9-18364 Filed 7-31-09; 8:45 am]

BILLING CODE 7590-01-P