Frequently Asked Questions About Managing Fatigue

This section provides the NRC staff's answers to the following questions related to managing fatigue, as it relates to fitness-for-duty:

My question is about Title 10 of the Code of Federal Regulations (10 CFR) Part 26, "Fitness for Duty Programs," as it relates to waivers for security officers. Let’s say that Officer A is working a normally scheduled shift and is held over, under a waiver, to work a second normally scheduled shift. Officer B is called in to work during his normally scheduled day off—but not under a waiver. Half way into the shift, the post that required the waiver (manned by Officer A) is secured and no longer needs manning. In this scenario, who should be sent home, Officer A or Officer B?

Officer A should be sent home. Under 10 CFR 26.207(a)(1)(i), licensees may grant a waiver to mitigate or prevent a condition that is adverse to safety or security. Further, 10 CFR 26.207(a)(2) stipulates that licensees should grant waivers only to address circumstances that could not have been reasonably controlled. In your scenario, with the presence of Officer B, the licensee has determined that the staffing complement is sufficient, that there is no longer a condition adverse to safety or security, and that the "circumstance" is being reasonably controlled. Therefore, the licensee should send Officer A home. (08/17/2011)

Please describe the process of granting and reporting waivers of the 10 CFR Part 26 work hour requirements.

Granting a waiver under Subpart I, "Managing Fatigue," of Title 10 of the Code of Federal Regulations (10 CFR) Part 26, "Fitness for Duty Programs," involves a process that, once completed, allows individuals who are subject to the Subpart I work hour controls to not meet one of the work hour requirements. For a Subpart I work hour requirement to be waived, the following four conditions must be met:

(1)	An operations shift manager, a security shift manager, or a site senior-level manager with requisite signature authority determines that a waiver is necessary, in accordance with the criteria in 10 CFR 26.207(a)(1)(i).
(2)	A supervisor assesses an individual within 4 hours before exceeding the limit for which the waiver will be granted, in accordance with the criteria in 10 CFR 26.207(a)(1)(ii).
(3)	The assessment must indicate that the individual being assessed is not fatigued, in accordance with 10 CFR 26.205(a)(1)(ii). (If the assessment indicates that the individual being assessed will likely become fatigued during the time covered by the waiver, then no waiver is granted, or controls and conditions are established under which the individual is allowed to work.)
(4)	The individual performs all or part of the work scope that was identified by the shift manager, the security manager or the senior level manager, under the waiver.

Multiple work hour requirements may be waived for an individual to perform covered work during any single work period. One Waiver Form may be used to document the waiving of one or more work hour requirement(s) for any single work period or for multiple work periods. For reporting purposes, each work hour requirement that is waived in a work period constitutes one waiver, in accordance with 10 CFR 26.203(e)(1).

Example 1. A circumstance arises such that a piece of equipment (that a risk-informed evaluation process has determined to be significant to the public health and safety) malfunctions. An individual who normally works 10-hour shifts has unique skills that are needed to repair the equipment.  He or she will be held over after the end of his or her normal 10-hour shift to finish the repair. It is expected that the performance of these duties will exceed the requirement to work no more than 16 hours in a 24-hour period. The shift manager determines that a waiver is necessary to mitigate a condition adverse to safety. The extended work period does not start until the work hour requirement is exceeded (i.e., more than 16 hours). The supervisor assessment is performed not more than 4 hours (i.e., hour 12) before the point in time when the requirement will be exceeded (i.e., hour 16:01). The individual performs work under the waiver. One waiver is reported.

Example 2. A circumstance arises such that a piece of equipment (that a risk-informed evaluation process has determined to be significant to the public health and safety) malfunctions,  The repair of the equipment will span more than 1 day. It is determined that a four-person crew will make the repair. The crew members will work in teams of two, and the teams will work successive 12-hour shifts until the repair is completed. It is determined that each of the crew members will exceed one or more of the 10 CFR Part 26 work hour controls; therefore, waivers will be needed to complete the repair. A shift manager determines that a waiver is necessary to mitigate a condition adverse to safety (this determination can be made only once for the job). Each individual works multiple work periods under the waiver, and each individual is assessed for fatigue not more than 4 hours before each work period. One Waiver Form is used to document the waivers granted in this entire evolution. For reporting purposes, one waiver is indicated for each individual for each work hour requirement exceeded for each of the work periods. (July 25, 2011)

Should unpaid meetings between a licensee and a covered worker that result from a union contract requirement be counted as work hours? Also, should the time spent by the union representative in these same meetings be counted as work hours?

Although grievance meetings may not result in paid hours, they are required by a mutual agreement between the licensee and the workers union. The NRC staff disposition of Comment 13 in Appendix B to Regulatory Guide 5.73, "Fatigue Management for Nuclear Power Plant Personnel," states, "The NRC staff agrees that 'unpaid union business,' like any other activity that may occur on site that is not performed for the licensee, may be considered personal time in which an individual is on site but is not performing covered work." Is this sufficient justification to exclude grievance meetings from work hour calculations?

Should a union member who has a morning grievance meeting with a licensee before an evening work shift count the time spent in the grievance meeting as work hours under the fatigue rule? The union member might argue that the meeting, while not paid time, was a requirement of the contract and that resolution of workplace disputes should be considered to be "performing duties for the licensee."

As indicated by the question, in Appendix B to Regulatory Guide 5.73, on page B-15, Comment 13, the NRC staff stated an opinion regarding how to classify unpaid union business vis-à-vis work hour controls under 10 CFR Part 26, "Fitness for Duty Programs." Regulatory Guide 5.73 states, "The NRC staff agrees that 'unpaid union business,' like any other activity that may occur on site that is not performed for the licensee, may be considered personal time in which an individual is on site but is not performing covered work." In the regulatory guide, "unpaid union business" is intended to mean, for example, the work of a union steward who completes reports for or communicates with union management on topics unrelated to implementation of the contract with the licensee. These activities are work performed for the union, rather than for the licensee, and therefore are not work hours for the purposes of 10 CFR 26.205, "Work hours."

However, grievance meetings held pursuant to a contract between the union and licensee are not like these examples of unpaid union business. Attendance by a covered worker at a meeting with the licensee, related to a grievance brought by the covered worker under a contract between the union and licensee that requires the presence of the covered worker at the grievance meeting, is work performed for the licensee. Therefore, time spent in a grievance meeting by a covered worker must be counted as work hours under 10 CFR Part 26.

If the union representative is a covered worker, and if the contract between the union and the licensee requires the union representative to attend the grievance meeting, then the time spent at the grievance meeting must be treated as work hours for the union representative.

10 CFR 26.205(b)(1) allows licensees to exclude shift turnover time from the calculation of an individual's work hours. For security officers, time spent arming, disarming, or conducting initial post turnover may be categorized as turnover time in accordance with RG 5.73 (Regulatory Position 8).

As part of the normal shift turnover process, the shift turnovers are scheduled in advance to allow time for adequate briefings of the oncoming personnel. For explanation purposes, the turnover could be scheduled from 3:00 p.m. to 3:30 p.m. The turnover might actually end at 3:20 p.m., however, for time reporting purposes, the security officer would record 30 minutes as the time spent in turnover because of limitations in the time recording software. In doing so, 10 minutes of actual work time is being categorized as turnover time and subsequently excluded from covered work.

What are the agency's expectations for licensee record keeping and accounting for shift turnover time? Considering the limitations of many timekeeping systems and the practical complications associated with attempting to account and exclude the exact amount of turnover time from covered worked (down to the minute), what reasonable regulatory guidance can be provided to licensees in order to aid them in complying with this regulation? Additionally, what is the threshold for when the NRC will take enforcement action and what guidance can be provided to the inspectors?

How precise do we require the licensee to be in accounting for work hours? Considering the limitations of some timekeeping systems (15-minute increments), are licensees in violation when the actual time spent conducting turnover cannot be accurately captured by 15-minute increments of a timekeeping system?

For certain Part 26 job duty groups, licensees require that individuals report to work a designated amount of time prior to the start of the shift to receive turnover from the off-going individual who was standing watch. In the question above, the licensee designates 30 minutes as the standard amount of time needed to perform turnover. Shift turnover is not required to be counted against the part 26 work hour limits (10 CFR 26.205(b)(1)), however, the question asks about the circumstances when a turnover ends prior to the designated 30 minutes and if the oncoming individual assumes the watch must the individual count all time from the end of the turnover to the normal shift start time as hours of work.

All time spent standing watch must be counted as time performing duties for the licensee, including times when the individual assumes the watch early. For Part 26 purposes, an individual's start time is the clock time that the individual takes the watch, not the time that the individual was scheduled to take the watch. The basis for this position is 10 CFR 26.205(b) which states "… the calculated work hours must include all time spent performing duties for the licensee."

Regarding level of precision with which licensees must record their time. Part 26 does not specify a level of precision. Therefore, a timekeeping level of precision greater than the licensee was using prior to implementing Part 26 work hour controls is not required.

For the calculation of the minimum number of days off a person is required to have, is it correct that the only requirement is to use the planned shift schedule?

That is not entirely correct. The planned shift schedule is used to establish the beginning minimum day off (MDO) requirement. If the actual hours worked do not deviate from the planned shift schedule then the required MDO will not change. However, if the hours worked is greater than the planned schedule then the licensee must calculate the average number of hours worked per day of work. This average is then compared against the requirements in 10 CFR 26.205(d)(3) through (5) to determine the required MDO. If the required MDO increases from the original MDO, then the licensee must ensure the individual is given enough days off to ensure the average MDO per week is met. This must be done prior to the end of the shift cycle.

 

For a 100 day outage the licensee chooses to work the first 30 days on outage hours, the next 40 days on operating hours then the last 30 days on outage hours. Is this 100 day outage schedule appropriate?

By itself, no, this schedule would not comply with the regulations. Only during the first 60 days of a unit outage are individuals granted an outage relaxation of the MDO requirements. To work a schedule in which individuals could work outage hours after the initial 60 days of the unit outage, the licensee must ensure that individuals work no more than 48 hours in a 7 day period during the first 60 days. This would allow individuals to receive a 7 day exclusion to work after the 60th day on outage hours. See 10 CFR 26.205(d)(6).

From your question, during the intervening period between the 60th day and the 71st day, individuals may work:

• Normal operating hours that satisfy the Part 26 requirements and guidance
• Non-covered hours as long as there is a transition back to covered work per endorsed guidance

When a site is in an extended outage and passes the first 60 days of its unit outage prior to implementing Subpart I, this site is not eligible to use 10 CFR 26.205(d)(6) for that outage.

Regarding work hour rules for nuclear plants: When in an outage, I understand that an employee can receive a 7-day extension for each 48-hour week worked, thereby giving a 14 day extension for two 48-hour weeks within 60 days. This takes the individual up to Day 74 before they "drop dead." To receive an extension at that point, can the individual, at that time, work another 48-hour week on days 71 thru 74 thereby providing for another 7-day extension? Also, can another group be off-scheduled Days 71-74, then work 48-hours on days 74-78, thereby making them eligible for another 7-day extension?

You are correct in your understanding that 10 CFR 26.205(d)(6) states that an individual who has worked 48 hours or less during any 7-day period during the first 60-days of a unit outage is eligible to work outage work hour controls on day 61-67 of the outage. If the individual works two 48-hour or less 7-day periods during the first 60-days of the unit outage the individual is eligible to work outage work hour controls on days 61-74 of the outage. As you are probably aware, the intent is to allow the licensee to plan their outage so that they can extend outage hours to complete work that was not able to be performed during the first 60 days of the outage. This allowance is available only during the first 60 days of the outage. Owing to the fact that 60-days is not evenly divisible by 7-day non overlapping periods, the maximum number of days the outage work hour controls can be extended is 56. To reiterate, the 48-hr allowance can only be banked during the first 60 days of the outage and used no later than day 116 of the outage.

In 26.4(c) individuals who report to the TSC and EOF are included into Subpart I excluding 26.205 thru 26.209. Since self-declarations are excluded for these workers (26.209) why are they included in 26.211 Fatigue Assessment. The only applicable fatigue assessment reasons are for cause and behavioral observation.

Self-declarations are not excluded for these workers. The provisions for self-declarations are included in 10 CFR 26.211. Although 10 CFR 26.209 is titled as self-declarations, it includes provisions for self-declarations only during waivers and is appropriate to be excluded,
as waivers are also excluded for individuals who report to the TSC and EOF.

What are the training requirements for a person who performs a fatigue assessment? The rule says only that the person performing the assessment must be trained under 26.209 and 26.23 are allowed to perform fatigue assessments. Neither of these describes fatigue assessment specific training requirements.

Correct, there are no additional rule based training requirements for the individuals performing fatigue-assessment.

SOC page 17144 says "The NRC expects that in many cases transient workers would have days off between outages as they travel between nuclear power plant sites" Does this mean to imply that travel between sites can be considered to be restful or that during these travel days there is expected to be an opportunity for restorative rest.

The interpretation of travel in the question is taken out of context to the meaning of the Statements of Consideration. This passage was not meant to imply that travel is or is not fatiguing but that the time between outages is thought to be sufficient to allow the individual ample time for restorative rest in support of managing fatigue.

Discuss 24 hr reportable events in 26.719.

A 24 hour report is required when any licensed person, FFD program person, or supervisor perform a significant violation of the licensee FFD policy or perform any intentional act that casts doubt on the integrity of the FFD program. An example of a significant violation is a conflict of interest when performing a fatigue assessment.

Non-outage shift cycles can be any length between 1 and 6 weeks. By rule outage shift cycles are 15 days for MDO calcs. Can an outage shift cycle be planned to be shorter than 15 days as long as the appropriate MDO is maintained?

The 15 day period described in 10 CFR 26.205(d)(4) is not a shift cycle. The 15 days are a period in which the individual must have the required number of days off. Therefore, yes a shift cycle may be shorter than 15 days as long as the appropriate MDO are maintained. Likewise, the 7-day period required for individuals specified in 10 CFR 26.4(a)(4) is not a required shift cycle but an MDO requirement.

Is the NRC considering a communication process when an inspection finding or a FAQ significantly impacts the way the industry has implemented a fatigue management rule requirement? Changing individual schedules at the last moment is not a good practice, for example the recent fuel handling discussions.

Any substantive questions that we are asked or issues based on inspection findings can be made public by first placing the question and its response in public ADAMS, then posting to the FFD FAQ webpage.

Thoughts on "professional time," the time spent working above and beyond a 40 hour week, which has typically been expected of supervisors and managers. For example shift managers attending management meetings, was the intent of the rule to end or curtail professional development?

Professional time has been considered in the development of the rule and is not discouraged. For instance, after-hours study time that is not required by the licensee has been excluded from the calculation of work-hours. Also, the work hour requirements allow individuals to work well beyond 40 hours per week. An individual might routinely work up to 54 hours a week under a number of different shift schedules, remembering that the minimum day off and break requirements also need to be attained.

What is the NRC interpretation of support activities like scaffold, crane ops, insulation R&R, non-engineered coatings relative to if they would agree they are not covered functions?

Erecting scaffolding is not a covered duty. Crane operations will often be a covered duty, but may not be. Insulation repair or restoration may be a covered duty if performed on a safetysignificant SSC. Non-engineering coatings are a maintenance function and can be considered to be covered work, again when performed on a safety-significant SSC.

For contractors arriving at a single site utility, what are the specific requirements for identifying past work history, documenting past work history or any other regulatory required evidence of work history?

Licensees must make reasonable efforts to verify that individuals performing covered work are fit for duty. Before an individual starts performing covered work the licensee should inquire of the individual if they have had the appropriate number of days off in the preceding seven-day period.

Licensee employees and contractor/vendor personnel may go from an outage at one site to an outage at another site. When a licensee employee or contractor/vendor performs covered work for a licensee during two or more unit outages or security system outages (or a combination thereof), and the interval(s) between successive outages is less than 9 days, the receiving licensee should determine that the individual has had a 34-hour break period within the 9 days that precede the day on which the individual begins working for the receiving licensee. In addition, when the individual begins work for the receiving licensee, the licensee should ensure that individual's hours worked did not and will not exceed the following limits:

1. 16 work hours in any 24-hour period
2. 26 work hours in any 48-hour period
3. 72 work hours in any 7-day period

See the implementation guidance contained in Section 7.3 of NEI 06-11, Revision 1 as endorsed by RG 5.73.

For turnovers which must be conducted on station inside an RCA where dress out is required prior to proceeding to the turnover location, the Reg Guide requires the clock to start at dress out which seems to then require turnovers to occur on the clock. This all but eliminates the ability to work a 6x12 outage work schedule. What was the NRC logic behind removing the dress out from turnover and is there a potential for this to be revisited?

The definition of turnover is very clearly described in 10 CFR 26.205(b)(1). Turnover does not include time necessary to prepare for specific job requirements, such as dressing out. Preparing for a job is work performed for the licensee and is counted against the work hour controls.

As described in RG 5.73. Licensees may exclude shift turnover from the calculation of an individual's work hours. Shift turnover includes only those activities that are necessary to safely transfer information and responsibilities between two or more individuals between shifts. Shift turnover activities may include, but are not limited to, discussions of the status of plant equipment, and the status of ongoing activities, such as extended tests of safety systems and components. Turnover for supervisors may be more extensive than for workers and will therefore may be longer.

What would the NRC consider to be excessive time excluded from working hours for turnover?

The rule does not place a time limit on shift turnover, however, 30 minutes of turnover time should be sufficient for most turnover requirements. On occasion, depending on plant situations, 30 minutes may not be sufficient to accommodate the actual turnover time between individuals exchanging the watch, however, this is expected to be unusual and not a frequent occurrence.

Review 10 CFR 26.205(b)(1) to understand what activities may be considered to be shift turnover. Activities such as training and pre-job briefs are not considered to be shift turnover for the purposes of Part 26 Subpart I.

Please define the term "qualification" as it applies to an assessor. In other words, what in the eyes of the NRC constitutes qualification?

Simply stated, there are no additional training requirements for a fatigue assessor other than the required general training. The supervisor performing the fatigue assessment shall be qualified to direct the work to be performed by the individual. If there is no supervisor on site who is qualified to direct the work, the assessment may be performed by a supervisor who is qualified to provide oversight of the work to be performed by the individual.

In the final RG, it is implicit, (but not stated) that on a multi – unit site, with one unit in an outage, the only individuals working under on-line work hour controls would be the licensed operators assigned to the operating unit. All field operators would be under outage work hour controls, regardless of which unit they are working in. I would like to confirm this was the intent, since the utilities are seemed to be aligned on this, and we are planning our implementation to allow this.

The questioner is not entirely correct; certainly the operations individuals called out in RG 5.73 are to remain on operating hours. Any others who do not work on outage activities are required to work on operating hours. Only those who work on outage activities, including field operators, are eligible for outage hours.

On a multi unit site, an outage licensed operator is requested to assist the on-line unit, (who has the minimum staffing), with a surveillance test. The outage operator would be augmenting the on-line control room staff and be performing control board manipulations. This appears to be acceptable, and validation is requested.

Correct, this is acceptable.

Non-intrusive NDE is not considered covered work…help us understand NRC definition of non-intrusive.

Predictive maintenance activities that do not result in a change of condition or state of a structure, system, or component (SSC) that a risk-informed evaluation process has shown to be significant to public health and safety may be excluded from covered maintenance activities. Examples of activities that may be excluded if they do not change the state or condition of these SSCs include, but are not limited to, nondestructive examination (NDE), such as thermography, vibration analysis, and data collection and analysis.

I'd like to see some discussion of details surrounding waivers and fatigue assessments. There seems to be some question as to whether the face-to-face assessment required before issuing a waiver is the same thing as the fatigue assessment that is required for cause/post-incident.

A fatigue assessment is performed for cause, after a self-declaration, post-event, and as follow-up. These are generally after the fact and the assessment should be designed to address the circumstance for which the assessment is needed. An assessment required to grant a waiver is predictive. The allowance to perform a predictive fatigue assessment acknowledges there are individual differences regarding the onset of fatigue. It is also acknowledged that once onset, the same performance degradations will be seen in all individuals. Therefore a predictive assessment should not simply try to understand if the person is currently fatigued (as a for cause assessment might) but that the person will not become fatigued over the work period in question.

We have a work group from the energy delivery part of the company that performs some work in our switchyard. They have unescorted access to the plant, but they only work here occasionally when needed. The rest of the time, they work out on the distribution system. If we consider them "covered workers" only when they are here, we would look back 9 days before they report to work. Then it might be several weeks before they're back again. If we take them in and out of covered worker status each time they work at the plant, would this be viewed as circumventing the MDO requirements?

Additionally, if we have to work someone overtime that would result in some future violation if they continue to work their same schedule, we would consider removing them from covered worker status and restricting their work activities rather than giving them paid time off. For example, if we had to hold an 8 hour shift worker over for an extra shift, they would only get 8 hours off before their next scheduled shift. If we removed them from covered worker status until after they had two days off and then returned them to covered worker status, would that be considered compliant with the rule?

An individuals may work on safety-significant and non-safety-significant work in the same day, week or shift cycle. If the switchyard is a safety-significant SSC and the individual is badged to enter any of the licensee protected areas, he/she is considered to be a covered worker. When an individual is in covered status for any part of the shift cycle they are a covered worker for all proceeding time in that shift cycle. Refer to 10 CFR 26.205(b)(3).

After performing covered work it is permissible to be taken off of covered work for the remainder of a cycle and not be subject to work hour controls. If an individual is taken off of covered work and is also taken off of work hour controls then returning the individual to covered work would require a transition to covered work as described in NEI 06-11, Rev 1 as endorsed by RG 5.73.

Travel time

1. Travel time that is required by the licensee is work performed for the licensee. This time should be counted as work hours. Travel is a non-covered duty and the time spent traveling should be included in the calculation of work hours (e.g., for determining the applicability of work hour controls and waiver requirements) as would any other noncovered duty.

   1. A normal daily commute is not considered to be work performed for the licensee and should not be included in the calculation of work hours

   2. Travel during a regularly scheduled work period is counted as would any other activity performed during that work period.

   3. Travel that starts during a work period and continues past the normal end of the work period is counted as an extension of the work period during which the travel was initiated.

   4. Travel that is started prior to a work period and continues into the normal start of the work period is counted as an extension of the work period.

2. Licensees shall ensure that individuals have, at a minimum a 10-hour break between successive work periods. For travel that starts after the normally scheduled work period, the licensee should allow for the time spent traveling plus the required 10 hour break before the start of the next work period.

3. When the inclusion of time spent traveling results in a violation of any work hour control the travel time can be considered to be non-covered duties and a transition back to covered work will be appropriate to manage fatigue. Guidance can be found in NEI 06-11, Revision 1, Section 7.3 "Transitioning Onto A Shift Or Between Covered Groups Or Into A Covered Group."

4. Travel time that occurs outside of a normally scheduled work period may be considered incidental duties performed off-site. Specifically, a nominal 30 or fewer minutes of travel time need not be included in the calculation of work hours.

   1. When travel time exceeds a nominal 30 minutes, all time spent traveling should be counted as work hours

   2. Travel before the 10 hour break should be counted as part of the previous work period

   3. Travel after the 10 hour break should be counted as part of the subsequent work period

5. Travel that occurs between 10-hr breaks and on a day when no other work period begins should be considered to be its own work period when calculating the minimum day off requirement.

6. For travel that includes voluntary stopovers or diversions (e.g., leisure travel) the licensee should include, in the calculation of travel time, only the typical amount of time it would take to travel from the point of origin to the destination as if there were no stopovers or diversions.

To implement the required 34-hour break for each 9-day period, is it necessary to use a "sliding window" to ensure that every single 216-hour period contains a complete 34-hour break?

The licensee must conduct two types of assessments to ensure that each individual who is subject to the requirements of Subpart I receives at least a 34-hour break during any 9-day period per § 26.205(d)(2)(ii). The first assessment addresses shift scheduling and the second assessment addresses actual hours worked.

To comply with the scheduling requirements in § 26.205(c), the licensee must verify that at the start of each shift, the individual is scheduled to have a 34-hour break within the following 216 hours.

To ensure that the actual hours worked by the individual are in compliance with the requirements of Subpart I, the licensee must confirm that at the end of the individual's forthcoming work period – including overtime if applicable – the individual has had a 34-hour break within the preceding 216 hours (i.e., 9 24-hour periods, rather than calendar days). The licensee must perform this check before allowing an individual to work any given period, scheduled or otherwise. Licensees should be particularly watchful with regard to allowing overtime immediately prior to a scheduled break of 34 hours or more to ensure that the resulting break complies with the provisions in Subpart I.

The licensee must continuously look forward, in real time, from the start of the first period of work, immediately following a 34 hour break, to ensure there is a 34 hour break in the subsequent 216 hour period.

It is not necessary to check all other possible 216-hour windows.

When a hurricane is expected to make land fall near a nuclear plant what can a licensee do to sequester necessary personnel on-site and not violate the Part 26 work hour controls.

The following is an excerpt from the Enforcement Guidance Memorandum (EGM) EGM-09-008, ML092380177, dated September 24, 2009 and is meant for information only. Refer to the EGM for complete guidance.

On July 15, 2009, during a public meeting regarding the licensees' implementation status of 10 CFR Part 26 Subpart I, the industry informed the NRC that under impending hurricane conditions licensees sequester site staff up to several days in advance of the declaration of an Unusual Event. This sequestering has the potential to violate the work hour control provisions of Subpart I. Individuals are sequestered because unsafe travel conditions exist when sustained winds exceed 40 mph. This precedes the threshold for declaring an Unusual Event which is typically declared when wind speeds reach hurricane force of 74 mph. [The declaration of an Unusual Event allows a licensee to be exempt from certain work hour controls under the provisions of 10 CFR 26.207(d).]

The NRC is providing guidance to allow enforcement discretion when licensees that are subjected to hurricane conditions take reasonable actions to sequester personnel before the declaration of an emergency caused by high winds, as well when the resulting hurricane damage precludes the immediate return of off-site personnel.

The NRC staff considers the exercise of enforcement discretion to be prudent because the actions to ensure enough staff are onsite is consistent with the practice of managing fatigue. This discretion is for 10 CFR 26.205(c) and (d), or any part thereof. All other fitness-for-duty requirements remain in effect. The enforcement discretion may remain in effect until sufficient non-sequestered personnel capable of meeting the minimum shift staffing requirements, in compliance with the work hour requirements specified in 10 CFR 26.205(c) and (d), return to the site. Typically, this will occur within 72 hours of the exit from the declared emergency.

The licensee must meet the following conditions:

• The licensee shall have site-specific procedural guidance that specifies the conditions necessary to sequester site personnel. The procedural guidance must contain provisions for ensuring that personnel who are not performing duties are provided an opportunity as well as accommodations for rest.
• The licensee requests an exemption.

Enforcement discretion may be granted when the following four conditions are met:

• The licensee has determined that conditions warrant a site lockdown, such that nonessential personnel will remain off-site and essential personnel will remain on-site.
• Local weather conditions will reasonably reach conditions to be hazardous to personnel safety for travel to or from the site.
• The site is located within the National Hurricane Center's forecasted Hurricane Watch Area.
• The licensee meets the conditions described in paragraphs a. and b. of the "Conditions" section of EGM-09-008.

The 10 CFR 26.205 (d)(1)(iii) says that work hours may not exceed 72 work hours in any 7 day period. Also, 10 CFR 26.205 (d)(2)(ii) states that licensees shall ensure that individuals have, at a minimum, a 34-hour break in any 9 day period. For the purposes of Subpart I can 7 days be interpreted as 168 hours and can 9 days be interpreted to be 216 hours?

Regarding using 7 days instead of 168 hours, NEI 06-11, "Managing Personnel Fatigue at Nuclear Power Reactor Sites," represents 7 days as 168 hours. This guidance was endorsed by RG 5.73, "Fatigue Management For Nuclear Power Plant Personnel."

Regarding using 9 days versus 216 hours, current guidance refers only to 9 days not 216 hours. However, NRC staff will accept 216 hours as an alternate method of implementing Subpart I.

We need to have outside contractors/vendors perform covered work on components in our switchyard, which is located outside our protected area. Could these contractor/vendor workers be escorted, instead of being required to meet the work hour controls? The allowance to use escorts seems to apply only to contractors working inside the protected area. The contractor/vendor switchyard workers are not badged for protected area access. They require access only to the owner-controlled area to work at the switchyard, and are not badged for protected area access.

As specified in 10 CFR 26.201, "Applicability," an individual who has not been granted unescorted access is not subject to the Subpart I work hour control requirements. Therefore, whether the individual in the switchyard is escorted, and where the individual performs covered work (inside or out of the protected area) are not relevant factors in this example.

The second sentence of 10 CFR 26.29(b) states, "The examination must include a comprehensive random sampling of all KAs with questions that test each KA, including at least one question for each KA." Does the NRC expect the licensees to have a question for every KA on every test, or does the staff expect that the test will randomly select questions for the KAs and each KA will have questions available?

Each test is to include at least one question from each KA. The rest of the test should be a random sample of questions from all of the remaining test items for all KAs.

10 CFR 26.203(d) specifies required records pertaining to Subpart I, Item (2) discusses "records of shift schedules and shift cycles…." Do these records need to show both the original planned schedule and the actual hours worked, or just the actual schedule/hours worked?

Both schedules and actual hours worked are required to be retained for 3 years. 10 CFR 26.203(d)(2) requires shift schedules and shift cycles to be retained and 10 CFR 26.203(d)(1) requires records of the actual work hours to be retained. (A series of shift cycles makes up a shift schedule.) These records are necessary to ensure that documentation of the licensee's fatigue management program is retained and available for NRC inspectors to verify that licensees are complying with the work hour requirements.

Does the NRC have a summary of the regulatory changes regarding fatigue and working hours at nuclear plants resulting from the issuance of the Part 26 final rule on March 31, 2008?

The NRC has not developed a summary of the regulatory changes regarding fatigue and working hours at nuclear plants. However, the Federal Register notice (73 FR 16966), dated March 31, 2008, regarding the final rule to amend 10 CFR Part 26 describes the fatigue management requirements. Section VI, page 16997 of that notice contains a "Section-by-Section Analysis of Substantive Changes." The discussion of Subpart I, "Managing Fatigue," begins on page 17118, and the Subpart I rule language appears on pages 17224 – 17227.

When using a shift schedule that rotates every 8 weeks, for the purpose of calculating days off, may a licensee stop every 6 weeks to ensure the number of days off requirement is met?

The rule does not prescribe the length of shift cycles. However, 10 CFR 26.205(d)(3) requires that individuals must have the minimum days off required for their shift schedules (i.e., an 8-, 10-, or 12-hour shift), averaged over a period not to exceed 6 consecutive weeks. Therefore, yes, if a licensee's shift cycles are longer than 6 weeks, it would be acceptable to review work hours every 6 weeks to ensure that the individual has met the applicable requirement regarding the minimum number of days off.

How will 26.31(b)(1)(ii), which provides general requirements for who may perform assessment or evaluation procedures, apply to fatigue assessments?

10 CFR 26.31(b)(1)(ii) does not apply to fatigue assessments. Like all of 10 CFR 26.31, this section applies only to drug and alcohol testing. By contrast, Section 26.211(b) specifies those individuals who may and may not perform fatigue assessments, Section 26.211(b)(1) provides the requirements regarding for-cause fatigue assessments, and Section 26.211(b)(2) provides the requirements for who may perform post-event fatigue assessments.

Are contractors considered to be subject to Subpart I of Part 26 if they are doing work within the protected area?

Whether the requirements of 10 CFR Part 26 are applicable to an individual depends on the types of access the licensee or other entity has granted to the individual, as well as the job duties the individual performs, rather than who employs the individual. Therefore, the circumstances in which contractors are subject to the requirements of Subpart I, are specified in §26.201, "Applicability." Contractors who have been granted unescorted access to the protected area and are performing the job duties listed in §§26.4(a)(1) through 26.4(a)(5) are subject to all of the requirements in Subpart I. If a contractor has been granted unescorted access to the protected area but is not performing covered job duties, the contractor is subject to the requirements of §§26.203 and 26.211. Contractors who are performing any job duties in protected areas under escort are not subject to the requirements of Subpart I. The table below is intended to illustrate the Subpart I requirements that apply to any individuals who have unescorted access to protected areas, regardless of the individuals' employer.

Applicable Requirements		Individual's Status (Includes licensee employees, visiting licensee personnel from other sites, contractors/vendors, others)
Section Number in Rule	Section Title (and topics)	Maintains Unescorted Access (UA), No Covered Job Duties	Maintains UA, Performs Covered Job Duties	Escorted Access to PA & Performs Any Job Duties
26.203	General (policy, procedures, including self-declarations, training)	X	X	NA
26.205	Work Hours (limits & rest breaks)	NA	X	NA
26.207	Waivers & Exceptions	NA	X	NA
26.209	Self-declarations (specific process for covered workers)	NA	X	NA
26.211	Fatigue Assessments	X	X	NA

If, during a shift cycle, a security crew has a training week where they are not performing security duties as armed security force officers, alarm station operators, response team leaders, or watchpersons, do those hours spent on-site during the training week count in calculating work hours [10 CFR 26.205(b)]?

Under 10 CFR 26.205(b), yes, the hours spent onsite during the training week count in the calculation of work hours during non-outage periods. For individuals who perform covered work during a shift cycle, such as the security personnel mentioned in the question, §26.205(b) requires licensees to include in the calculation of the individuals' work hours all hours during which an individual performs work for the licensee, whether or not the work is covered by Part 26.

10 CFR 26.203(a) states that licensees shall establish a policy for the management of fatigue for all individuals who are subject to the licensee's Fitness-for-Duty (FFD) program, and incorporate it into the written policy required in §26.27(b), which is required to be completed by March 31, 2009. Is this implying that a fatigue assessment for all individuals (not just for a work hour waiver or what is required as part of Subpart I) needs to be implemented by March 31, 2009, or September 2009?

Licensees are not required to implement the fatigue management requirements in Subpart I, including the requirements for conducting fatigue assessments and the processes for granting a waiver, until the end of the 18-month implementation period. The 18-month implementation period for Subpart I ends October 1, 2009. Thus, the requirement in 10 CFR 26.203(a) to incorporate a fatigue management policy into the written policy required in §26.27(b) must be completed by October 1, 2009.

Below is a proposed schedule that has a 3-week rotating cycle. This schedule runs 8 hours a day from 0800–1600. Would this schedule meet the 34-hour break period requirement?

Shift Days		M	T	W	T	F	S	S
Hours	Week 1	8	8	8	8	8	X	X
	Week 2	X	X	8	8	8	8	8
	Week 3	8	8	8	X	X	8	8

The schedule laid out in the example meets the 34-hour criterion in 10 CFR 26.205(d)(2)(ii). The 34-hour period starts at the end of the work shift and is accommodated by the days off as designated by an "X" in the example. In addition, this shift schedule also exceeds the criterion in §26.205(d)(3)(i) that requires individuals who are working an 8-hour shift (during non-outage periods) to have a minimum of 1 day off per week, averaged over the shift cycle. In this example, the shift schedule provides for an average of 2 days off per week.

Regulatory Guide (RG) 5.73, "Fatigue Management for Nuclear Power Plant Personnel," states that if a licensee chooses to implement 10 CFR Part 26, Subpart I, using a method that is different from one specified in RG 5.73, the NRC would review this methodology for acceptability. Does this require that a licensee submit to the NRC, for review, any methods that are not specified in RG 5.73?

Regulatory Guide (RG) 5.73 provides acceptable methods for licensees and applicants to implement the fatigue management requirements of 10 CFR Part 26, Subpart I. Licensees need not submit alternative implementation methods, prior to implementation, for NRC review. Audits or inspections may include reviews of licensees' specific implementation methods. Under "Use of Other Methods," page 14 of RG 5.73, includes the following paragraph:

Licensees and other entities subject to Subpart I of 10 CFR Part 26 may use methods other than those described in NEI 06-11, as clarified by the regulatory guide, to meet the requirements of the regulations in 10 CFR Part 26. The NRC will determine the acceptability of other methods on a case-by-case basis. Methods and solutions that differ from those set forth in this regulatory guide may be deemed acceptable if they are accompanied by a sufficient basis for the finding required for issuance or continuance of a permit or license by the Commission.

Concerning the Table on page 12 of Regulatory Guide 5.73, "Minimum Number of Individuals per Shift Working Non-Outage Schedules for Onsite Staffing of Operating Nuclear Power Units During Outages."

For a three-unit station with one unit in operation, the table specifies that the entire minimum site complement of operators per 10 CFR 50.54(m) is not eligible for outage minimum days off (MDO) treatment. Please provide the rationale for specifying that all the minimum required site operators are to be excluded from the outage MDO?

For two-unit stations, each of the minimum required senior operators per 10 CFR 50.54(m) is not eligible for outage minimum days off (MDO) requirements. What is the rationale for all the minimum required senior operators to be excluded from the outage MDO?

The numbers in the table below indicate the number of control room operators responsible for the operating unit(s) that the staff considers not eligible for outage MDO requirements. The NRC policy basis for excluding operators who are responsible for the operating unit(s) from working outage hours includes:

• 1989 "Policy Statement on the Conduct of Nuclear Power plant Operations"
• 2008 Regulatory Guide 1.114 "Guidance to Operators at the Controls and to Senior Operators in the Control Room of a Nuclear Power Unit.

The regulatory basis for the exclusion includes:

• 10 CFR 50.54(m)(2)(i), which establishes the minimum control room shift staffing requirements based on number of operating units and the control room configuration.
• 10 CFR 50.54(k), which requires an operator at the controls of any operating unit at all times.
• 10 CFR 50.54(m)(2)(iii), which requires a senior operator in the control room of any operating unit at all times. Additionally, for any fueled unit, an operator or senior operator shall be present at the controls at all times.

The table below shows that the number of senior reactor operators (SROs) and reactor operators (ROs) who should remain on operating hours depends on the configuration of the control rooms for the units at the site. In general, the guidance recommends that the required operator at the controls and the senior operator in the control room for each operating unit should be excluded from outage MDO requirements. One additional RO and SRO who have not been working outage hours also should be available to provide relief for the operator at the controls and the senior operator in the control room.

Also, many control rooms have control panels that are arranged such that two ROs are required to operate the equipment and systems affected by plant transients or relied upon to mitigate significant events. Two ROs per operating unit are necessary to ensure that the reactor operator at the controls required by 10 CFR 50.54(k) is alert and fully capable of responding to any event that may occur.

One SRO would be expected to maintain oversight of the operating unit activities as the senior operator for the operating unit in the control room with relief provided by the second SRO. Two SROs per operating unit are necessary to ensure that the senior operator in the control room required by 10 CFR 50.54(m)(2)(iii) is alert and fully capable of responding to any event that may occur.

Therefore, for a two-unit site with one unit in an outage, all of the SROs and two of the ROs required under 10 CFR 50.54(m)(2)(i) are to remain on operating hours.

Minimum Number of Individuals Per Shift Working Nonoutage Schedules for Onsite Staffing of Operating Nuclear Power Units during Outages
Number of operating nuclear power units1	Position	Two-unit Site		Three-unit Site
		One Control Room	Two Control Room	Two control rooms				Three Control Rooms
				Single Control Room Unit In Outage	Single Control Room Unit and One Unit Served by Dual Control Room In Outage	One of the Units Served by Dual Control Room in Outage	Two Units Served by Dual Control Room in Outage
One	Senior Operator	2	2		2		2	2
	Operator	2	2		2		2	2
Two	Senior Operator			2		3		3
	Operator			2		4		4
1 For the purpose of this table, a nuclear power unit is considered to be operating when it is connected to the grid.

On page 11 of Regulatory Guide (RG) 5.73, the phrase, "the minimum shift complement of operators required under 10 CFR 50.54(m) for the operating unit ", is used. However, 10 CFR 50.54(m) addresses on-site minimum staffing and does not include a column or note that refers to the minimum shift complement for an operating unit. What is this statement referring to in 50.54(m)?

The minimum complement specified by Regulatory Guide (RG) 5.73, "Fatigue Management For Nuclear Power Plant Personnel," is derived from the minimum site staffing requirements of 10 CFR 50.54(k) and (m), and reflects that portion of the minimum site staffing of operators necessary to ensure the safety of the operating unit. For example, at a two-unit site with one unit in outage, the staff's position is that two ROs and two SROs would not be eligible for the outage MDO.

In referring to multi-unit station eligibility for outage minimum days off (MDOs), Regulatory Guide (RG) 5.73, "Fatigue Management for Nuclear Power Plant Personnel," appears to require that some minimum portion of the operating staff remain not eligible for outage MDOs even when all plants on the site are in an outage. Is this interpretation correct?

No, the interpretation is not correct. When all units on a site are in an outage, all covered workers are eligible for outage work hour controls, including all control room operators.

Regulatory Guide (RG) 5.73, "Fatigue Management for Nuclear Power Plant Personnel," states that a shift cycle could not be less than 1 week. If a contractor works less than 1 week at a station, is he/she to be given days off?

Regulatory Guide (RG) 5.73 refers to shift cycles being as short as 1 week because the minimum day off (MDO) provisions are based on a weekly average. For individuals with unescorted access, who perform covered work, for a period that is less than 1 week in duration, there is no applicable MDO requirement. The licensee is responsible for understanding whether any transitions are occurring, such as beginning or resuming duties subject to work hour controls, or such as performing work at another licensee site. Transitions may require the individual to receive days off per the MDO provisions. This guidance is applicable to licensee employees, as well as employees onsite from other licensees and contractors/vendors.

Please provide clarification on how to determine significance to the public health and safety for maintenance and ops covered activities. Part 26 rule states use 10 CFR 50.65(a)(4), but lot of items in a(4) are not safety-significant during outages. For example auxiliary feedwater is not risk-significant during an outage. Everything in a(4) is significant to public health and safety per definition, so everything is covered.

Maintenance rule a(1) and a(2), high safety-significance is a different set of systems than a(4). Which part of the maintenance rule should we be using?

Regarding the definition of maintenance, for the purposes of Part 26, use the 10 CFR 26.05 definition. In the example presented in this question, the auxiliary feed water system is safety significant when the unit is operating. If an individual works on the auxiliary feed water system either during outage or operations, the individual would be considered to be subject to the work hour controls in 10 CFR 26.205.

When a covered worker is performing activities in multiple work categories (for example, operating and maintaining), is it acceptable to leave them in the more restrictive work hour restriction categories? For example, a worker who performs fuel handling during an outage and also performs equipment tagouts performs activities under both operating and maintaining categories. It is acceptable that the worker is maintained on the more restrictive operating MDO?

If an individual is performing work under multiple categories, the licensee must manage fatigue by having the individual adhere to the more restrictive work hour controls, as the minimum day off (MDO) requirements for the most restrictive category must be met. If there is a transition, for example, between covered groups or onto a covered group, please refer to Regulatory Guide (RG) 5.73 for guidance.

Does a phone call at home while you are on your 12-hour break in between shifts interrupt your required rest time under the new guidelines?

A phone call at home while you are on any of your required breaks under 10 CFR 26.205 is considered to be an incidental duty under 10 CFR 26.205(b)(5). Incidental duties may be excluded from the calculation of work hours, provided that the total duration of the unscheduled work does not exceed a nominal 30 minutes. The 30 minutes is cumulative and could result from, for example, three 10-minute phone calls. If the cumulative 30-minute limit is exceeded, the total amount of time the individual has spent on incidental duties must be included in the calculation of his/her work hours. Depending on when the incidental duties are performed, they may be determined to be an additional work day, or they could be added to the work hour calculation for the previous or upcoming shift. Please refer to the implementation guidance in Regulatory Guide (RG) 5.73 for additional information.

When transitioning out of a Planned Outage Schedule the output breakers close on a Tuesday at 2000. My shift cycles always start on a Sunday at 0000. My online requirements now apply, but I have less than a week until my cycle begins. In order to transition all workers onto their normal cycle on Sunday at 0000, I need to leave them on the same schedule they worked for the outage until Saturday at 1900. I would manage their hours to be less than the 54 hours required by the online rules for the 4-day period of time and ensure that a 34-hour break is scheduled to occur in the 9-day period around the transition date. In addition, all MDO requirements would be met for the outage and they would be met going forward from Sunday at 1900. Would this be an acceptable way to handle the transition? The Transitions out of an Outage are going to be the hardest to make. The Transitions will need to be planned very carefully especially when a worker is changing from a day shift to a night shift or night shift to day shift.

There is no 54-hour limit for work hours related to 10 CFR Part 26, Subpart I. [There is a 54-hour review requirement in §26.205(e)(1)(i).] Although it is possible that certain schedules could be acceptable when using 54 hours as your criteria, we cannot blanketly accept the use of a 54-hour maximum, because various schedules can be envisioned that would exceed the work hour controls in §26.205.

It is important to reiterate that a 54-hour criterion would not ensure that an individual has an acceptable work schedule or hours worked.

When exiting from an outage that does not end exactly when your new shift schedule begins (from your example, Sunday at 0000), there are different ways to handle the few "extra" days. One way is to just add the extra days onto the beginning of the planned shift cycle. This will create an odd length schedule, for example, a 5-week and 4-day schedule, which is an acceptable shift cycle length under 10 CFR 26.205(d)(3).

Another way to handle coming out of the outage is to create a short cycle of, perhaps, 11 days. The short cycle could include the 4 extra days plus the next full week. This type of schedule allows you to account for the extra days, including MDO and allows you to start a full cycle at the end of the short cycle.

A third way to handle these extra days is to set up your cycle to start the day the outage ends and then roll the schedule (6 weeks perhaps) on a daily basis. When the rolling schedule meets up with the desired start of the fixed 6-week schedule, end the rolling schedule and begin the fixed.

When transitioning into a planned outage and I have a contractor/worker who has less than a week onsite coming into the outage. How should we manage the MDO requirements. There is less than a week onsite and, therefore, I don't believe I can call it a cycle. What I would like to do is to manage his hours within the 54-hour online average limit for that few days and look forward to ensure he gets the 34-hour break in the first 9 days and all other aspects of the rule will be met. I think this meets the intent of the rule. I would also ensure that he meets the Minimum Day Off (MDO) requirements going forward into the outage. Would this be an acceptable method to handle a contractor entering the site less than 6 days prior to output breakers being opened?

For the purposes of calculating work hour controls, Regulatory Guide 5.73 defines a shift cycle as being no shorter than 1 week and no longer than 6 weeks. Therefore, there are no MDO requirements for covered workers for periods less than 1 week in duration. You are correct to manage the individual's time so that all other aspects of work hour controls will be met, including transitions. If the individual is onsite for 1 week or longer, the MDO requirements apply. There is no basis to use a 54-hour average as a substitute for MDO.

According to the minutes from the November public meeting with NEI, licensees will be able to exclude turnover at both ends of the shift. This is due to security requiring a turnover at both ends and possibly control room turnovers that may require a turnover at each end. Is this in writing anywhere?

10 CFR 26.205(b)(1) states that licensees may exclude shift turnover from the calculation of an individual's work hours. Regulatory Guide (RG) 5.73 clarifies that shift turnover may include the time taken by security guards to arm and disarm. However, for the purposes of calculating breaks, 10 CFR 26.205(d)(2) states that one period of shift turnover must be included in the calculation of break times. Therefore, the excluded period of shift turnover can be at the beginning or end of the shift, but not both.

When we hold someone over for a double shift, we decided that if a person was held for more than 4 hours they would have started another shift and, therefore, it would count as a day worked in the MDO calculation. When this is programmed into the software it will not differentiate shifts. When this is programmed, it will tell us a new shift was started anytime an OT shift exceeds 4 hours. The software will figure this as a normal 8-hour shift and a second shift of 4.5 hours all in the same day and they are adjacent shifts. So now when the calculation is done to determine the shift average for MDO, you will never get more than a 12-hour shift average and when you have these shortened shifts, it will lower the shift average.

If you work a worker a 6-hour OT shift (because this is the maximum you can work and still get a 10-hour break), now you will average a 8-hour shift and a 6-hour shift into the MDO calculation instead of a 14-hour shift. This helps the shift average calculation to be a lower average, and if the OT occurs after 0000 when the shift started the previous day, the software categorizes the shift as starting on the next day and it is not counted as a day off.

Here is my problem now when I make this change, the program will do this for all shifts over 4 hours. It makes sense that if it is more than splitting the shift, it should be considered a separate shift, but if it is a separate shift, it will change the calculation for the MDO requirements. This situation could be looked upon as playing games with the calculation, but it needs to be one way or the other in the computer. Any help in this matter is appreciated.

10 CFR 26.205(d)(2)(i) requires licensees to ensure that individuals have a minimum 10-hour break between successive work periods, or an 8-hour break between successive work periods when a break of fewer than 10 hours is necessary to accommodate a crew's scheduled transition between work shifts. Thus, treating an overtime shift that is successive to a regular shift as a new shift would violate this provision. To address your question regarding the programming software at your facility, for the purposes of Subpart I, the programming software must calculate regular work hours plus any successive overtime hours as a single shift.

We have a group of workers who work a straight 12-hour day shift, performing covered job duties. There is no back shift, the job is only worked 12 hours per day and the job is idle the other 12 hours. Is the period after the workers arrive for work each day considered to be turnover time, which by the definition of turnover time , would not be counted as work hours? The individuals are not turning over with anyone on the previous shift because there was no previous shift. However, they would be doing things like getting briefed on:

• what happened on your last shift
• what's changed since your last shift
• what we want you to do this shift

The same status information is being communicated and serves the same purpose as a direct turnover between two adjacent shifts. Should this time be counted as worked hours and not counted as turnover time?

The situation you describe does not meet the definition of shift turnover. We agree that the information you describe is important to the individual's job performance; however, a shift turnover as described in 10 CFR Part 26, typically occurs when the on-coming shift worker comes in before the start of the work shift to obtain important information required to perform his/her duties. A shift turnover is dependent on the off-going shift worker to provide this information. For the purpose of Subpart I, the time taken to provide the briefing described in your question is more akin to a pre-shift brief and should be counted toward the individual's hours worked.

To what extent, if any, does 10CFR26, Subpart I, apply to a facility that has submitted a letter to the NRC under 10CFR50.82(a)(1)(i) and 10CFR50.82(a)(1)(ii) certifying permanent cessation of power operations and that fuel has been permanently removed from the reactor?

The regulations in 10 CFR Part 26 specify, in part, that licensees who are authorized to operate a nuclear power reactor under § 50.57 must comply with the requirements of Subpart I in Part 26. Under 10 CFR 50.82, after the NRC dockets a licensee's certifications of permanent cessation of operations and that fuel has been permanently removed from the reactor, the licensee is no longer authorized to operate the reactor under their Part 50 license. Consequently, that licensee need not comply with the provisions of 10 CFR Part 26, Subpart I. Consistent with previous licensee 10 CFR 50.82 certifications, orders may be issued requiring the licensees to retain some elements of their FFD programs. See examples of previous orders.

When the previous orders were issued, Part 26, Subpart I had not been promulgated, so the fatigue provisions were not considered in the development of the orders. If the NRC issues similar orders in the future, the NRC could require licensees to retain elements of their fatigue management programs for specific personnel.

In response to the COVID-19 public health emergency, many licensees have imposed fleet- or site-wide policies requiring that employees either get vaccinated against COVID-19 or undergo periodic COVID-19 testing.
 
For sites imposing such requirements, does the time spent by individual workers getting vaccinated or undergoing testing need to be included when calculating work hours for those individuals, in accordance with 10 CFR 26.205?
 
Time spent obtaining a COVID-19 vaccination or undergoing periodic COVID-19 testing does not need to be included in the calculation of work hours. 
 
It should also be noted that the time spent obtaining a COVID-19 vaccination or test (or a portion of this time) may be treated by an employer as paid time.  The NRC, however, does not consider the fact that an employee is compensated for this time to necessitate that it be considered “time performing duties for the licensee” and thereby included in the calculation of work hours.

Fuel Handling Question

The industry considers the disassembly and reassembly of the reactor components during refueling a maintenance activity. Included within this activity are many actions such as: removal of the reactor head, unlatching control rods, removal of the upper internals, and removal of fuel followed by actions to restore each such as reloading of fuel. Additionally, the industry considers the activities related to fuel handling outside the reactor vessel such as: fuel insert shuffle, loading fuel into the spent fuel pool, receiving new fuel, loading spent fuel casks, and movement of spent fuel casks to be maintenance activities.

The definition of maintenance as provided in 10 CFR Part 26:

Maintenance means, for the purposes of § 26.4(a)(4), the following onsite maintenance activities: Modification, surveillance, post-maintenance testing, and corrective and preventive maintenance.

The disassembling of components, the reinstallation of components, the lifting of components, are all maintenance activities. Additionally, the definition includes implementation of modifications as a maintenance activity. The term core alteration (fuel loading or transfer) is synonymous with the term modification. The normal practice of the industry as described in SOER 96-2, Design and Operating Considerations for Reactor Cores, is to treat core redesign as a design modification. The fuel handling SRO would be directing the implementation of a design modification. The workers disassembling and reassembling the reactor vessel and components would be performing the maintenance activities to implement the design modification. Additionally, the redesign of the reactor core and the reconfiguration of the core to comply with the established core design have been historically classified as a modification for the purposes of applying 10 CFR 50.59. This topic was extensively discussed during the promulgation of the revised 50.59 rule in the late 1990's. NEI 96-07 Rev. 1, "Guidelines for 10 CFR 50.59 Implementation," as endorsed by Regulatory Guide 1.187, "Guidance for Implementation of 10 CFR 50.59, Changes, Tests, And Experiments," addressed this definition of "maintenance.

A simple application of the rule could be to apply the maintenance category of work hour restriction to all fuel handling personnel.

However, there are regulations other than Part 26 associated with fuel handling that require a licensed operator to directly supervise core alterations. In 10 CFR Part 50.54:

(m)(2)(iv) Each licensee shall have present, during alteration of the core of a nuclear power unit (including fuel loading or transfer), a person holding a senior operator license or a senior operator license limited to fuel handling to directly supervise the activity and, during this time, the licensee shall not assign other duties to this person.

Regulations provide specific exceptions that allow for manipulation of components that affect reactivity by workers other than licensed operators, 10 CFR Part 50 and 10 CFR Part 55:

§ 50.54 Conditions of licenses.

(h)(i) Except as provided in § 55.13 of this chapter, the licensee may not permit the manipulation of the controls of any facility by anyone who is not a licensed operator or senior operator as provided in part 55 of this chapter.

(j) Apparatus and mechanisms other than controls, the operation of which may affect the reactivity or power level of a reactor shall be manipulated only with the knowledge and consent of an operator or senior operator licensed pursuant to part 55 of this chapter present at the controls.

§ 55.4 Definitions.

Controls when used with respect to a nuclear reactor means apparatus and mechanisms the manipulation of which directly affects the reactivity or power level of the reactor.

§ 55.13 General exemptions.

(b) Under the direction and in the presence of a licensed senior operator, manipulates the controls of a facility to load or unload the fuel into, out of, or within the reactor vessel.

With several regulatory documents impacting the various fuel handling activities, a consistent categorization of the activities would be prudent. The industry recommends the following categories for the workers involved with fuel handling:

The Fuel Handling SRO that is required to directly supervise core alterations will be considered in the operating category for Part 26 due to the regulatory requirement to hold a SRO license.

The RO in the control room that is responsible for maintaining communication with the refueling crew and is responsible for monitoring for indication of reactivity changes will be considered in the operating category for Part 26 due to the regulatory requirement to hold an operating license.

The containment fuel handler that is moving or transferring fuel assemblies in the reactor core will be considered in the maintenance category for Part 26. The regulations in Part 50 and 55 have exceptions that allow this activity to be performed by workers other than licensed operators. The operation of cranes and the implementation of modifications are normally considered maintenance activities.

The worker operating the containment cranes for disassembly or assembly of reactor vessel components will be considered in the maintenance category for Part 26. The operation of cranes is normally considered a maintenance activity. Although, some of the activities can be considered core alterations, such as control rod unlatching in a PWR, regulations allow for these activities to be conducted by workers other than licensed operators.

The workers supporting disassembly or assembly of reactor vessel components will be considered in the maintenance category for Part 26. The operation of cranes is normally considered a maintenance activity. Although, some of the activities can be considered core alterations, such as control rod unlatching in a PWR, regulations allow for these activities to be conducted by workers other than licensed operators.

The worker moving fuel or shuffling fuel assembly inserts in the spent fuel pool will be considered in the maintenance category for Part 26. The operation of cranes is normally considered a maintenance activity. Additionally, these activities do not meet the definition of control as described in regulations as they do not directly impact core reactivity or power level.

The workers moving new fuel assemblies into storage locations outside the reactor vessel will be considered in the maintenance category for Part 26. The operation of cranes is normally considered a maintenance activity. Additionally, these activities do not meet the definition of control as described in regulations as they do not directly impact core reactivity or power level.

The workers moving spent fuel assemblies into storage casks for long tern storage will be considered in the maintenance category for Part 26. The operation of cranes is normally considered a maintenance activity. Additionally, these activities do not meet the definition of control as described in regulations as they do not directly impact core reactivity or power level.

The workers moving storage casks from the loading facility to a long term storage area will be considered in the maintenance category for Part 26. The operation of cranes is normally considered a maintenance activity. Additionally, these activities do not meet the definition of control as described in regulations as they do not directly impact core reactivity or power level.

Does the NRC staff agree with this consistent application of fuel handling activities to the work hour restriction categories described in 10 CFR Part 26?

Fuel Handling Response

10 CFR Part 50.54 (m)(2)(iv) states that each licensee shall have present, during alteration of the core of a nuclear power unit (including fuel loading or transfer), a person holding a senior operator license or a senior operator license limited to fuel handling to directly supervise the activity and, during this time, the licensee shall not assign other duties to this person. The term loading fuel is further clarified in 10 CFR 55.13(b) "… load or unload the fuel into, out of, or within the reactor vessel."

Staff agrees that regulations support the position that the apparatus and mechanisms which are designed to change the reactivity or power level of the reactor clearly fall under the definition of "controls" and shall be manipulated only by a licensed operator or senior operator as specified in 10 CFR 50.54(i). Staff understands that 10 CFR 55.13(b) provides an exemption allowing an unlicensed individual to manipulate the controls to load or unload fuel into, out of, and within the reactor vessel when under the direction of a senior licensed operator.

Therefore, staff considers the handling of fuel in the reactor vessel and the transfer of fuel into, out of, and within the reactor vessel to be an operations function and individuals who perform or direct these functions should receive operations work hour controls.

Additionally, in support of handling fuel in the reactor vessel as being an operations function: 1) Moving fuel in the reactor vessel is a direct reactivity manipulation, 2) Technical Specifications require a direct line of communication with the control room reactor operator during fuel movement, 3) Operations is responsible for the overall evolution of moving fuel, and 4) The reactor operator must concur on every fuel movement and monitors reactivity instrumentation during all fuel moves.

Staff agrees that removal of the reactor head and removal of the upper internals, fuel insert shuffle, loading fuel into the spent fuel pool, receiving new fuel, loading spent fuel casks, and movement of spent fuel casks are not supported by current regulations to be operations functions, for the purposes of Part 26.

Staff supports that the apparatus and mechanisms which are not designed or intended to change the reactivity or power level of the reactor but may do so as a result of normal or abnormal operation, need not be manipulated by a licensed operator, but must be performed with knowledge and consent of an operator or senior operator licensed pursuant to Part 55 as specified in 10 CFR 50.54(j). As example, a change in reactor coolant temperature caused by an inadvertent cold water addition is not a reactivity control manipulation but an operating transient and/or accident to which the reactivity control systems must respond.

Therefore, operating controls to move fuel in the reactor, including fuel loading or transfer of fuel into, out of, or within the reactor vessel are considered to be operations functions performed by non-licensed individuals at the direction of a licensed individual. For the purposes of Part 26 Subpart I, these individuals should be subject to operations work hour controls. The SRO responsible for fuel movements, the LSRO and the RO involved with fuel movements are considered to be on operating hours because of the functions they perform, not necessarily because of the license they hold. All other functions not discussed in this response that are involved with moving fuel are not considered to be performing operations functions for the purpose of receiving work hour controls.

Note: The information herein is provided as a public service and solely for informational purposes and is not, nor should be deemed as, an official NRC position, opinion or guidance, or "a written interpretation by the General Counsel" under 10 CFR 26.7, on any matter to which the information may relate.  The opinions, representations, positions, interpretations, guidance or recommendations which may be expressed by the NRC technical staff responding to your inquiry are solely the NRC technical staff's and do not necessarily represent the same for the NRC.   Accordingly, the fact that the information was obtained through the NRC technical staff will not have a precedential effect in any legal or regulatory proceeding.