Frequently Asked Questions About COVID-19 Part 26 Work Hour Control Exemption
This section provides the NRC staff's answers to the following questions related to COVID-19 Part 26 Work Hour Control Exemption, as it relates to fitness-for-duty:
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1) Why is the NRC prepared to exempt operating reactor licensees from Part 26 work hour control requirements?
A sudden and potentially long-term reduction in available facility staffing, such as that which may result due to the Coronavirus Disease 2019 (COVID-19) Public Health Emergency (PHE), was not considered during the rulemaking that established the 10 CFR 26.205(d) work-hour controls (73 Fed. Reg. 16966; March 31, 2008). Exemption from these requirements will provide licensees flexibility in management of personnel resources to maintain plant operational safety and security during a period when facility staffing may be reduced due to the COVID-19 PHE. NRC inspectors may periodically review any issues concerning worker fatigue and the NRC retains the right to rescind any exemptions or use enforcement should the circumstances warrant. By establishing temporary alternative work hour controls as outlined in the March 28, 2020 letter, the NRC believes reasonable assurance of public health and safety will be maintained even if COVID-19 causes a sudden and potentially long-term reduction in available facility staffing.
2) Why did the NRC move so quickly on this?
The NRC took preemptive action to address the potential for COVID-19 to develop into a severe pandemic affecting the public health and safety and security at NRC licensed facilities. The COVID-19 PHE represents a challenging situation where licensee staffing may unexpectedly and rapidly degrade warranting the need for an exemption to Part 26. This action will allow for expeditious and complete safety reviews given the uncertain spread of COVID-19
3) What other NRC requirements will provide reasonable assurance of appropriate worker fatigue management during the exemption period?
The requirements of 10 CFR 26.33, "Behavioral observation"; 10 CFR 26.209, "Self-declarations"; and 26.211, "Fatigue assessments," remain in effect during the period of the exemption. These requirements, in conjunction with licensee alternative administrative controls for fatigue management, provide reasonable assurance that should personnel become impaired due to fatigue, requirements and processes are in place to identify the impairment through observation by plant staff or by worker self-declaration, and to assess and address instances of impairment through fatigue assessments.
4) How is the NRC going to ensure that licensees will appropriately manage worker fatigue during the period of exemption?
NRC inspectors will have access to licensee site-specific documents related to the exemption. In addition, NRC inspectors are available to periodically review any issues concerning worker fatigue, and the NRC retains the right to rescind any exemptions or use enforcement should circumstances warrant.
5) Wouldn't the staffing demands be lower and the operational challenges lessened if all the reactors were shut down until the pandemic passes?
In general, yes. However, the demands of a national health emergency and the need for electricity from critical infrastructure is sufficient to justify and support the consideration of plant-specific requests to maintain the plants at power to ensure public health and safety and security.
6) How should a licensee submit a COVID-19 related request for an exemption from the Part 26 work hours requirements so that it is processed expeditiously?
A licensee should submit the exemption request in PDF format using either of two methods:
- through the Electronic Information Exchange (EIE), along with an email to the plant's Licensing Project Manager. When submitting through EIE, include "EXPEDITE" in the Comment field.
- as an attachment to an email addressed to the Document Processing Center (firstname.lastname@example.org) and the plant's Licensing Project Manager. The Subject line of the email should include "URGENT – COVID-19 Part 26 Exemption Request"
Whichever method is used, as always, the licensee should ensure that the PDF is in compliance with the NRC's Guidance for Electronic Submissions to the NRC so that it can be promptly added to ADAMS. Additionally, to ensure timely receipt and review of these exemption requests, licensees should continue to follow 10 CFR 50.4, "Written communications." Requests must be sent from a senior level licensee manager with decision-making authority. The Document Control Center will address non-conforming documents with the Licensing Project Manager, who will work with the licensee to resolve the issue and obtain a submittal that can be processed into ADAMS.
7) What are the specific work hour control requirements from which the NRC is prepared to provide exemptions?
If the conditions for an exemption are met, then the NRC will grant an exemption from the work hour controls in § 26.205(d)(1) through (d)(7). Specifically, licensees will be exempted from:
- the work hour limits of 10 CFR 26.205(d)(1),
- the minimum break requirements of 10 CFR 26.205(d)(2);
- the minimum day off requirements of 10 CFR 26.205(d)(3);
- the unit outage minimum day off requirements of 10 CFR 26.205(d)(4);
- the unit outage, security outage, and increased threat condition minimum day off requirements of 10 CFR 26.205(d)(5);
- the outage work hour control requirements of 10 CFR 26.205(d)(6); and
- the alternative minimum day off requirements of 10 CFR 26.205(d)(7).
8) Is it the intent of the letter that only the specific subgroup of workers impacted by COVID-19 (e.g., licensed operators) is eligible for the exemptions as opposed to applying to all covered personnel under 10 CFR 26.4(a) regardless of which subgroup is impacted by the virus?
No, the exemption covers 10 CFR 26.205(d)(1) through (7), which refer to various groups of plant workers. The NRC recognizes that the spread of the COVID-19 and its associated impacts may be extensive and may have widespread impacts on site personnel. In that regard, the letter describes the NRC's intent to grant Part 26 exemption requests in a manner that affords licensees flexibility in using personnel resources to most effectively manage the impacts of the COVID-19 PHE on maintaining the safe operation of these facilities. Therefore, the requests for exemptions from work hour controls could be for any or all of the personnel groups under 10 CFR 26.4(a) and not only the impacted subgroup.
9) What does the entry condition "a licensee's staff level is affected by the COVID-19 PHE" mean? Is an infection of a worker onsite needed to meet this condition?
No. A confirmed case onsite is not necessary to meet the condition that a licensee's staffing levels are affected by the COVID-19 PHE. This condition could be met if the staffing levels at the site are impacted directly or indirectly by COVD-19 including licensee actions to reduce the spread of the virus. It is also not limited to sequestered personnel.
10) Would a licensee still be able to leverage the process outlined in the letter if they can't meet one or more of the alternative fatigue controls outlined in the letter? If yes, then what additional information do they need to submit?
The letter is intended to provide an efficient safety review process for the NRC to grant exemptions from work hour control requirements in Part 26 as sites are impacted by COVID-19. Part of the process is for the licensee to adopt the alternative worker fatigue management controls outlined in the letter. If a licensee proposes alternative controls, then the NRC staff will review these alternative controls on a case-by-case basis and assess their acceptability and the timeframe needed to complete the review and render a decision. In addition to the information outlined in the letter, the licensee will need to list its proposed alternative controls and describe the safety basis for those alternatives.
11) Does the NRC's letter apply to fuel cycle facilities, decommissioning reactors, and standalone ISFSI sites?
The letter does not apply to fuel cycle facilties. As stated in 10 CFR 26.3, licensees who are authorized to possess, use, or transport formula quantities of strategic special nuclear material are not subject to Subpart I of Part 26, which includes the work hour requirements. Some fuel facilities have made license commitments to implement similar requirements. Licensing actions requesting relief from those commitments will be processed on a case-by-case basis. Fuel facilities have been reminded of the guidance issued in Regulatory Issue Summary 2010-04, "Monitoring the Status of Regulated Activities during a Pandemic" (ADAMS Accession No. ML100539611). The NRC is interested in maintaining situational awareness of licensees' ability to cope with the challenges associated with a pandemic.
The letter does not apply to decommissioning reactors or standalone ISFSI sites. 10 CFR Part 26 work hour controls only apply to Part 50 licensees when the licensee is authorized to operate. Once a 10 CFR Part 50 power reactor licensee has filed the certifications required by 10 CFR 50.82, and those certifications are docketed by the NRC, the licensee is no longer authorized to operate and therefore does not have to maintain a fitness for duty program. Some decommissioning power reactors and standalone ISFSI sites may have a fitness for duty program to meet their obligations under 10 CFR 73.55(b)(9)(ii). Decommissioning reactor licensees and standalone ISFSI sites should contact their licensing project managers (or other appropriate NRC POCs) with questions about their regulatory obligations that may be affected by the COVID-19 PHE.
12) Would a licensee still need to fill out 10 CFR 26.207 waivers?
Not for positions listed in 10 CFR 26.4(a) and for whom the licensee was granted an exemption from 10 CFR 26.205(d)(1)-(7) requirements. Waivers are for use when a licensee waives one of the work hour controls in 10 CFR 26.205. If the licensee has received an exemption from the requirements of 10 CFR 26.205, then the requirements to which the waiver process described in 10 CFR 26.207 applies are no longer applicable to the licensee for the duration of the exemption. The waiver process does not apply to the alternative controls adopted by the licensee as part of the exemption process.
13) Can a licensee use waivers to manage the transition from compliance with 10 CFR 26.205(d) to the administrative work hour constraints applicable during an exemption from the Part 26 requirements?
During the first 30 days of the transition from compliance with the requirements of 10 CFR 26.205(d) to the administrative work hour constraints applicable during an exemption, the look-back period for calculating compliance with a given control (e.g., a minimum of 6 days off in any 30-day period) may include hours worked prior to the exemption period. Should a licensee determine that: (1) hours worked prior to the exemption period, in conjunction with hours worked during the exemption period, will cause an individual to deviate from the administrative work hour constraints described in the NRC's letter; and (2) deviation from the administrative constraint is warranted for management of the effects of the COVID-19 PHE on plant staffing; then the licensee should assess the individual for fitness to work during the deviation period using a supervisory assessment consistent with the process and considerations described in 10 CFR 27.207(a)(ii). Use of this process is limited to the first 30 days of the exemption period for transition circumstances that could not have been reasonably controlled.
14) What if my situation doesn't fit within the bounds of the letter?
The NRC will always consider other requests and we will do our best to process such request in a timely manner, but licensees will need to submit those requests via the normal exemption process. Additional review, processing time, and effort is expected to allow consideration and review of situation specific details.
15) When does the 60-day period of exemption start?
In applications where licensees specify a precise date and time when they will begin utilizing the exemption, the NRC will set the exemption to end 60 days from when the licensee first uses it. If a licensee doesn't or can't specify an exact date and time when they will begin utilizing the exemption, then the NRC will set the exemption to end 60 days from when it is issued. In either event, the NRC's letter granting the exemption will specify the date and time when it expires.
16) The letter contains a specific expiration period. What is the process for obtaining extension of the initial exemption?
The NRC will consider requests for extending the period of the exemption on a case-by-case basis. The NRC's expectation is that licensees will closely monitor site conditions and projected staffing challenges. Further, the NRC expects licensees to identify a potential need to extend the period of exemption in a timely manner to allow for early engagement with the NRC to discuss the situation. The NRC expects that the basis in the letter to remain applicable, but licensees would need to account for cumulative fatigue effects that may be encountered in any extension request.
Page Last Reviewed/Updated Monday, September 21, 2020