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The US Nuclear Regulatory Commission (NRC) Staff issued SECY-20-0034 on April 22, informing the NRC Commissioners of the Staff’s plan to exercise enforcement discretion for licensee noncompliance with regulatory requirements resulting from illnesses or other factors caused by the coronavirus (COVID-19) public health emergency (PHE). The Staff’s approach applies to all classes of licensees and provides long-awaited guidance on the subject of enforcement discretion.

The NRC issued its final Temporary Staff Guidance (Final Guidance) on April 6 on its review procedures for coronavirus (COVID-19)-related Part 26 exemption requests. The NRC previously issued a draft of this guidance on April 1 and also discussed the draft during a teleconference with the industry on April 2, which we reported on.

The Final Guidance follows the NRC’s March 28 letter to the Nuclear Energy Institute (NEI) notifying licensees of the process for requesting relief from the work-hour controls in Part 26 due to the COVID-19 public health emergency. We reported on this announcement in a previous blog and discussed the NRC’s required content for an exemption request and the procedures for licensees to request an exemption. Since that report, the NRC issued an addendum on April 8, clarifying that the March 28 letter does not apply to fuel facilities and correcting a reference to the behavioral observation regulation for operating reactors.

As we recently reported, the US Nuclear Regulatory Commission (NRC) is prepared to grant exemptions to the work-hour controls in 10 CFR 26.205(d)(1)-(7) if the coronavirus (COVID-19) public health emergency affects a licensee’s staffing for workers who fall within the scope of Part 26. On April 2, the NRC held a teleconference with industry representatives and members of the public to discuss the exemption process as a follow-up to its March 28, 2020, guidance letter sent to power reactor licensees. The meeting also discussed its Temporary Staff Guidance (Guidance) issued on April 1, 2020, by the NRC Office of Nuclear Reactor Regulation (NRR). This Guidance, which also was shared with the public, provides the NRC’s anticipated process for its review of Part 26-related exemption requests.

In response to the coronavirus (COVID-19) public health emergency, the US Nuclear Regulatory Commission (NRC) announced that it is prepared to grant upon request from individual Part 50 licensees, exemptions to the work-hour controls specified in 10 CFR 26.205(d)(1)-(7).

This announcement followed a March 20 industry teleconference on workhour relief processes during which Office of Enforcement Director George Wilson indicated that a blanket Enforcement Guidance Memorandum (EGM) related to COVID-19 was in development with an attachment on work-hours. However, Office of Nuclear Reactor Regulation Director Ho Nieh has instead issued a letter describing a streamlined process for exemptions to work-hour requirements. The NRC’s letter does not acknowledge or explain the significance of this departure from their original plan, including whether the agency still intends to issue an EGM at some point, and whether additional topics will be covered. To date, no EGM has been issued on this topic, but one may be in the future.

The NRC recently issued an allegation guidance memorandum (AGM) to provide guidance on the handling of certain drug and alcohol fitness-for-duty (FFD) violations. The AGM directs that licensee-identified drug and alcohol FFD violations by nonlicensed individuals not be processed in the NRC’s allegation program. This guidance took effect immediately and will be incorporated into the Allegation Manual. The next revision of Management Directive (MD) 8.8 will also incorporate this guidance by adding “Licensee-identified [FFD] drug- and alcohol-related violations by nonlicensed individuals” to the list of concerns excluded from the definition of an “allegation.”

The AGM is the result of changes to Section 4.1 of the NRC’s Enforcement Policy approved by the Commission on April 18, 2019. As we discussed at that time, an NRC Staff review found that for most FFD drug and alcohol violations, the licensees had identified the issue and conducted an internal investigation into the violation by the time the NRC received notification of the violation. Staff also found that licensees were imposing the penalties required by 10 CFR § 26.75 to appropriately disposition individual FFD drug and alcohol issues before most NRC investigations began.

As anticipated in our September 3 blog, the NRC on September 16 published in the Federal Register a proposed rule and request for comment regarding its amendment of 10 CFR Part 26, “Fitness for Duty Programs” (FFD). We reported on the Commission’s approval of the rulemaking and the NRC Staff’s Draft Regulatory Analysis and Backfitting and Issue Finality.

In recap, the purpose of this rulemaking is to align more closely the NRC’s drug testing program with the US Department of Health and Human Services’ (HHS’s) 2008 “Mandatory Guidelines for Federal Workplace Drug Testing” (the 2008 Guidelines). The major provisions of this proposed rule would

The NRC will soon issue in the Federal Register a proposed rulemaking to amend the drug testing requirements of the Fitness for Duty (FFD) Program in 10 CFR Part 26. The proposed rule seeks to align the NRC’s drug testing requirements in Part 26 with the US Department of Health and Human Services’ (HHS’s) 2008 Mandatory Guidelines for Federal Workplace Drug Testing Programs (the 2008 Guidelines). The NRC is expected to publish the proposed rule in the coming weeks, but the draft rule with comments from the Commission is available, as well as the NRC Staff’s Draft Regulatory Analysis and Backfitting and Issue Finality.

The NRC last updated its drug testing requirements in March 2008, but HHS did not issue the 2008 Guidelines until November 2008. The NRC Staff decided to forgo another round of rulemaking to align Part 26 with the 2008 Guidelines in such close succession. Instead, the NRC Staff worked with the industry to institute a voluntary reporting system for FFD testing violations. The NRC Staff also began evaluating the effectiveness of the drug testing program changes implemented under the 2008 Guidelines. In February 2017, the NRC Staff sought Commission approval to publish a proposed rule to align the NRC’s FFD drug testing program with the 2008 Guidelines. The Commission approved this request in May 2019, subject to certain changes to the draft rule.

The Nuclear Regulatory Commission, by a 3-1 vote on August 7, agreed with the NRC Staff’s recommendation to discontinue a rulemaking on third-party arbitration of access authorization and fitness-for-duty determinations. The decision leaves admitted ambiguity, including a potential enforcement risk in the event that a licensee reinstates an individual’s revoked access authorization or a fitness-for-duty determination.

As we last reported on April 24, the NRC Staff recommended in SECY-19-0033 to withdraw a rulemaking begun in 2015 to revise the NRC’s regulations regarding whether a third-party arbitrator could review a licensee’s access authorization or fitness-for-duty decisions. In SRM-SECY-19-0033, the Commission agreed with that recommendation.

As part of the US Nuclear Regulatory Commission’s (NRC’s) efforts to create efficiencies in its enforcement process, the NRC Commissioners unanimously approved a staff proposal to change Section 4.1 of the NRC’s Enforcement Policy. Under this approved change, the NRC will not typically consider fitness-for-duty (FFD) drug and alcohol violations involving non-licensed individuals for enforcement action. But the NRC will still investigate if there are apparent deficiencies in a licensee’s FFD program itself or the program’s implementation. Thus, to avoid enforcement actions in the future, licensees must continue to maintain an effective FFD program for drug and alcohol violations.

As we last reported on October 5, 2018, the NRC Staff appeared ready to recommend withdrawing a rulemaking on third-party arbitration of access authorization and fitness-for-duty determinations. On April 4, 2019, the NRC Staff formally made its recommendation in SECY-19-0033. In so doing, the NRC Staff “request[ed] Commission approval to discontinue the rulemaking activity, ‘Access Authorization and Fitness-for-Duty Determinations’,” which began nearly four years ago. As previously reported, this rulemaking activity was a response to a 2012 decision by the US Court of Appeals for the Seventh Circuit in which the court determined that NRC regulations permitted third-party arbitration of unescorted access determinations. At that time, the NRC Staff disagreed with the decision and asked for Commission approval to begin a rulemaking.