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###### Nuclear Regulatory Commission

          - 10 CFR Parts 55 and 76
          - RIN 3150-AI69
          - [NRC-2009-0242]

# AGENCY:

Nuclear Regulatory Commission (NRC).

# ACTION:

Final rule.

# SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) is making administrative changes to its regulations to correct errors published in recent rulemaking documents. This final rule clarifies the term “Under the Influence” and corrects erroneous citations and typographical errors. This document is necessary to inform the public of these changes.

# DATES:

Effective date is October 5, 2009.

# FOR FURTHER INFORMATION CONTACT:

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

# ADDRESSES:

You can access publicly available documents related to this document using the following methods:

*Federal e-Rulemaking Portal:*                         Go to                         *http://www.regulations.gov*                         and search for documents filed under Docket ID [NRC-2009-0242]. 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 O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland.                    

*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 to                         *pdr.resource@nrc.gov.*

# SUPPLEMENTARY INFORMATION:

## Background

                    On March 31, 2008, (73 FR 16965), the NRC published a final rule                           ( print page 45545)                        amending its Fitness-for-Duty programs to update the fitness-for-duty requirements and enhance consistency with advances in other relevant Federal rules and guidelines including the U.S. Department of Health and Human Services Mandatory Guidelines for Federal Workplace Drug Testing Programs, and other Federal drug and alcohol testing programs that impose similar requirements on the private sector. The March 2008 rule amended portions of former § 26.2 and moved them into new § 26.4. This final rule corrects a cross-reference to § 26.2(a)(1) through (5), as stated in § 76.60(f), to read § 26.4(d)(1) through (5).                

Furthermore, this document clarifies the term “Under the Influence,” as stated in § 55.53(j), by stating that the licensee exceeded, as evidenced by a confirmed test result, the lower of the cutoff levels of drugs or alcohol contained in 10 CFR Part 26. The reference to appendix A of Part 26 has been removed from § 55.53(f) because the March 2008, Final rule eliminated appendix A from Part 26.

## Rulemaking Procedure

Because this amendment constitutes a minor administrative change to the regulations, the notice and comment provisions of the Administrative Procedure Act do not apply under 5 U.S.C. 553(b)(B).

## Environmental Impact: Categorical Exclusion

The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rule.

## Paperwork Reduction Act Statement

                    This final rule does not contain information collection requirements and, therefore, is not subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501*et seq.*).                

## 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 Office of Management and Budget (OMB) control number.

## Backfit Analysis

The NRC has determined that the backfit rule does not apply to this final rule; therefore, a backfit analysis is not required for this final rule because these amendments are administrative in nature and do not involve any provisions that would impose backfits as defined in 10 CFR Chapter I.

## 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 of OMB.

# List of Subjects

### 10 CFR Part 55

      - Criminal penalties
      - Manpower training programs
      - Nuclear power plants and reactors
      - Reporting and recordkeeping requirements

### 10 CFR Part 76

      - Certification
      - Criminal penalties
      - Radiation protection
      - Reporting and recordkeeping requirements
      - Security measures
      - Special nuclear material
      - Uranium enrichment by gaseous diffusion

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 5 U.S.C. 553, the NRC is adopting the following amendments to 10 CFR Parts 55 and 76.

# PART 55—OPERATORS' LICENSES

1. The authority citation for part 55 continues to read as follows: 

Authority: Secs. 107, 161, 182, 68 Stat. 939, 948, 953, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2137, 2201, 2232, 2282); secs. 201, as amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841, 5842); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Sections 55.41, 55.43, 55.45, and 55.59 also issued under sec. 306, Pub. L. 97-425, 96 Stat. 2262 (42 U.S.C. 10226). Section 55.61 also issued under secs. 186, 187, 68 Stat. 955 (42 U.S.C. 2236, 2237).

2. In § 55.53, paragraph (j) is revised to read as follows: 

§ 55.53 

* * * * *

(j) The licensee shall not consume or ingest alcoholic beverages within the protected area of power reactors, or the controlled access area of non-power reactors. The licensee shall not use, possess, or sell any illegal drugs. The licensee shall not perform activities authorized by a license issued under this part while under the influence of alcohol or any prescription, over-the-counter, or illegal substance that could adversely affect his or her ability to safely and competently perform his or her licensed duties. For the purpose of this paragraph, with respect to alcoholic beverages and drugs, the term “under the influence” means the licensee exceeded, as evidenced by a confirmed test result, the lower of the cutoff levels for drugs or alcohol contained in 10 CFR Part 26, or as established by the facility licensee. The term “under the influence” also means the licensee could be mentally or physically impaired as a result of substance use including prescription and over-the-counter drugs, as determined under the provisions, policies, and procedures established by the facility licensee for its fitness-for-duty program, in such a manner as to adversely affect his or her ability to safely and competently perform licensed duties.

* * * * *

# PART 76—CERTIFICATION OF GASEOUS DIFFUSION PLANTS

3. The authority citation for part 76 continues to read as follows: 

Authority: Sec. 161, 68 Stat. 948, as amended, secs. 1312, 1701, as amended, 106 Stat. 2932, 2951, 2952, 2953, 110 Stat. 1321-349 (42 U.S.C. 2201, 2297b-11, 2297f); secs. 201, as amended, 204, 206, 88 Stat. 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846). Sec. 234(a), 83 Stat. 444, as amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243(a)); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note): Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 2951, as amended.

Section 76.7 is also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). Section 76.22 is also issued under sec. 193(f), as amended, 104 Stat. 2835, as amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243(f)). Section 76.35(j) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152).

4. In § 76.60, paragraph (f) is revised to read as follows: 

§ 76.60 

* * * * *

(f) The Corporation shall comply with the applicable provisions of 10 CFR Part 26, “Fitness-for-Duty Programs.” The requirements of this section apply only if the Corporation elects to engage in activities involving formula quantities of strategic special nuclear material. When applicable, the requirements apply only to the Corporation and personnel carrying out the activities specified in § 26.4(d)(1) through (5), of this chapter.

* * * * *

Dated at Rockville, Maryland, this 11th day of August 2009.
      ( print page 45546)    
For the Nuclear Regulatory Commission.

R.W. Borchardt,

Executive Director for Operations.

[FR Doc. E9-21230 Filed 9-2-09; 8:45 am]

BILLING CODE 7590-01-P