[Federal Register Volume 59, Number 227 (Monday, November 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29171]


[Federal Register: November 28, 1994]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 2


Policy and Procedure for Enforcement Actions; Policy Statement, 
Discrimination

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement; revision.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
General Statement of Policy and Procedure for Enforcement Actions 
(Enforcement Policy) to address issues associated with discrimination. 
A change is also being made to address Commission review of certain 
cases involving reports of the Office of Investigations.

DATES: This revision is effective on November 28, 1994.
    Comments are due on or before December 28, 1994.

ADDRESSEES: Send written comments to: The Secretary of the Commission, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555. Attn: 
Docketing and Service Branch. Deliver comments to: 11555 Rockville 
Pike, Rockville, Maryland 20852, between 7:45 am and 4:15 pm on Federal 
workdays.
    Copies of comments may be examined at the NRC Public Document Room, 
2120 L Street, NW. (Lower-Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555 
(301)-504-2741.

SUPPLEMENTARY INFORMATION: On July 6, 1993, the NRC's Executive 
Director for Operations established a review team to reassess the NRC's 
program for protecting allegers against retaliation. The review team 
report, NUREG-1499,1 Reassessment of the NRC's Program for 
Protecting Allegers Against Retaliation, was published in January 1994. 
The team report summarizes current processes, gives an overview of 
current problems, and gives recommendations for each area that is 
discussed. The NRC is adding additional guidance in its Enforcement 
Policy to address Recommendations II D.2, D.5., and D.6 of the report 
relating to enforcement actions for violations involving 
discrimination.
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    \1\Copies of NUREG-1499 may be purchased from the Superintendent 
of Documents, U.S. Government Printing Office, Mail Stop SSOP, 
Washington, DC 20402-9328. Copies are also available from the 
National Technical Information Service, 5285 Port Royal Road, 
Springfield, Virginia 22161. A copy is also available for inspection 
and copying for a fee in the NRC Public Document Room, 2120 L 
Street, NW. (Lower Level), Washington, DC 20555-0001.
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    The NRC Enforcement Policy is codified at 10 CFR Part 2, Appendix C 
to provide widespread dissemination of the Commission's Enforcement 
Policy. However, this is a policy statement and not a regulation.

Civil Penalty Adjustment for Corrective Action

    Corrective action is a significant factor in mitigation or 
escalation of base civil penalties for violations involving 
discrimination. A paragraph is being added to B2(b) of Section VI of 
the Enforcement Policy to provide an explanation of the corrective 
action adjustment factor as applied to discrimination cases. The NRC 
can require broad remedial action to improve the workplace environment, 
but it cannot require a licensee to provide the individual with a 
personal remedy. The Department of Labor (DOL) has the authority to 
require that a personal remedy be provided. A violation involving 
discrimination is not completely corrected without the personal remedy, 
and the chilling effect may well continue if a personal remedy is not 
provided. Thus the Commission does not believe that any proposed 
penalty should be mitigated if a personal remedy is not provided. A 
civil penalty normally should be mitigated for corrective action only 
if the licensee takes prompt, comprehensive corrective action which (1) 
addresses the broader environment for raising concerns in the 
workplace; and (2) provides a remedy for the particular discrimination 
at issue. In the determination of whether or not a remedy has been 
provided, the NRC considers whether a settlement has been reached or if 
a remedy ordered by DOL has been implemented. Where a remedy has been 
accepted by DOL, NRC intends to defer to DOL on the adequacy of the 
remedy. Cases where a licensee offers an employee a reasonable remedy, 
but the employee declines, will be handled on a case by case basis.
    The promptness and scope of corrective action should also be 
considered in applying the corrective action factor. If settlement 
occurs early in the administrative process, mitigation may be warranted 
based on corrective actions as the chilling effect may have been 
minimized by the promptness of the remedy and remedial action. However, 
if settlement occurs after the evidentiary record closes before the 
Administrative Law Judge, then any existing chilling effect may have 
existed for a substantial time, and the complainant may have had to 
spend substantial resources to present his or her case. Under such 
situations mitigation normally would not be warranted. If the licensee 
does not take broad corrective action until after a Secretary of 
Labor's decision, and the Secretary's decision upholds an 
Administrative Law Judge's finding of discrimination, corrective action 
may be untimely and escalation warranted. If the licensee chooses to 
litigate and eventually prevails on the merits of the case, then 
enforcement action will not be taken and, if already initiated, will be 
withdrawn. Assuming that evidence of discrimination exists, enforcement 
action that emphasizes the value of promptly counteracting the 
potential chilling effect is warranted.

Enforcement Discretion

    It is recognized that there are some cases of discrimination where 
enforcement action may not be warranted. Paragraph B(7) is being added 
to Section VII to provide an explanation of the types of cases in which 
the NRC may refrain from taking enforcement action and those in which 
the NRC normally would not exercise such discretion. A licensee who, 
without the need for government intervention, identifies an issue of 
discrimination and takes corrective action to address both the 
particular situation and the overall work environment is helping to 
establish a safety-conscious workplace. Aggressive licensee follow-up 
also provides a message that retaliation is not acceptable within its 
workplace. Assuming that these actions are reasonable and effective, 
NRC enforcement action may not be warranted.
    Another situation in which enforcement may not be warranted is 
where a complaint is filed with the DOL, but the licensee settles the 
matter before the DOL Area Office makes a finding of discrimination. 
Alternatively, if a finding is made against the licensee, the licensee 
may choose to settle before the evidentiary hearing begins. An NRC 
policy of not normally citing violations in such cases might encourage 
licensee settlements, thereby reducing the potential for chilling 
effect. Settlements also provide a more timely remedy for the 
complainant and may be used to demonstrate the licensee's commitment to 
a retaliation-free environment. Therefore, the NRC may exercise its 
discretion not to take enforcement action when the licensee has 
publicized (1) that a complaint of discrimination for engaging in 
protected activity was made to the DOL; (2) that the matter was settled 
to the satisfaction of the employee (the terms of the specific 
settlement agreement need not be posted); and (3) that if the DOL Area 
Office found discrimination, the licensee has taken action to 
positively reemphasize that discrimination will not be tolerated. This 
information might be publicized by posting a notice, a newsletter, a 
handout, or some other means, but the information should be conveyed in 
a manner designed to minimize the chilling effect on others. A similar 
approach may be taken when a person comes to the NRC without going to 
the DOL.
    Even if no formal enforcement action is taken, the NRC would issue 
a letter, as is normal practice in similar cases, to emphasize the need 
for lasting remedial action. The licensee would also be informed that 
future violations may result in enforcement action. In certain cases, 
the NRC may also consider entering into a consent order with the 
licensee, as part of the settlement process, to address remedial 
action.
    Whether the exercise of discretion is appropriate will depend on 
the circumstances. For example, normally enforcement discretion would 
not be appropriate for cases that involve: (1) Allegations of 
discrimination as a result of providing information directly to the 
NRC; (2) allegations of discrimination caused by a manager above first-
line supervisor (consistent with the current Enforcement Policy 
classification of Severity Level I or II violations); (3) allegations 
of discrimination where a history of findings of discrimination (by the 
DOL or the NRC) or settlements suggest a programmatic rather than an 
isolated discrimination problem; (4) allegations of discrimination 
which appear particularly blatant or egregious.2 In addition 
enforcement discretion normally would not be exercised for cases where 
the licensee does not appropriately address the overall work 
environment (e.g. by using training, postings, revised policies or 
procedures, any necessary disciplinary action, etc. to communicate 
corporate policy against discrimination).
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    \2\ While enforcement action would normally be warranted in 
these four types of cases, depending on the circumstances mitigation 
for corrective action may be appropriate.
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Severity Levels

    The existing examples of harassment and intimidation in Supplement 
VII of the NRC Enforcement Policy focus on the level of management 
involved in the discrimination. Additional examples are warranted to 
address other considerations associated with discrimination. Example 
B(9) will be added as a Severity Level II example to address violations 
involving a hostile work environment. Such a violation may be very 
significant because the failure by licensee's management to correct a 
hostile work environment can have a potentially significant adverse 
impact on employees raising issues. In such cases employees may not 
believe that they are free to raise concerns.
    Supplement VII does not currently address threats of discrimination 
or restrictive agreements, both of which are violations under NRC 
regulations such as 10 CFR 50.7(f). Example C(10) is being added as a 
Severity Level III example to address such violations. This type of 
violation is being categorized at a Severity Level III because the 
potential impact on future protected activity may be of significant 
regulatory concern.
    Some discrimination cases may occur which, in themselves, do not 
warrant a Severity Level III categorization. Example D(6) is being 
added as a Severity Level IV example to address these situations. An 
example of such a case might be a single act of discrimination 
involving a first-line supervisor, in which the licensee promptly 
investigates the matter on its own initiative, takes prompt, decisive 
corrective action to limit the potential chilling effect, and thereby 
provides a clear message to other supervisors and employees that such 
conduct will not be tolerated. Another example might involve a threat 
of adverse action against an employee for going around the supervisor 
to raise a concern; if the licensee took prompt, aggressive corrective 
action before any adverse action was taken toward the employee, such a 
case might be considered as having minimal potential for a widespread 
chilling effect. These cases would be categorized at a Severity Level 
IV because they are of more than minor concern and, if left 
uncorrected, could lead to a significant regulatory concern. Therefore, 
the Enforcement Policy is being changed to provide the flexibility to 
classify less significant discrimination violations as Severity Level 
IV. Such cases would normally be considered for exercising enforcement 
discretion if warranted under section VII B(7). However, citations 
would normally be made if one of the four exceptions in that section 
were applicable.

Miscellaneous

    The Enforcement Policy is also being changed to reflect current 
Commission practice on consultation concerning proposed enforcement 
actions involving or relating to Office of Investigation (OI) reports. 
This change is being made to Section III.

Paperwork Reduction Act Statement

    This final policy statement does not contain a new or amended 
information collection requirement subject to the Paperwork Reduction 
Act of 1980 (44 U.S.C. 3501 et seq.). Existing requirements were 
aproved by the Office of Management and Budget, approval number 3150-
0136.

List of Subjects in Part 2

    Administrative practice and procedure, Antitrust, Byproduct 
material, Classified information, Environmental protection, Nuclear 
materials, Nuclear power plants and reactors, Penalty, Sex 
discrimination, Source material, Special nuclear material, Waste 
treatment and disposal.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND 
ISSUANCE OF ORDERS

    1. The authority citation for Part 2 continues to read, in part, as 
follows:

    Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 
5841) * * *.

    2. Appendix C to Part 2 is amended by--
    a. Revising Section III, paragraph (9);
    b. Adding a paragraph directly after Section VI, B.2., paragraph 
(b);
    c. Adding paragraph (7) to Section VII, B.; and
    d. In Supplement VII, revising paragraphs B(7), B(8), C(8), C(9), 
D(4), and D(5) and adding paragraphs B(9), C(10), and D(6) to read as 
follows:

Appendix C to Part 2--General Statement of Policy and Procedure for NRC 
Enforcement Actions

* * * * *

III. Responsibilities

* * * * *
    (9) Any proposed enforcement case involving an Office of 
Investigation (OI) report where the staff (other than the OI staff) 
does not arrive at the same conclusions as those in the OI report 
concerning issues of intent if the Director of OI concludes that 
Commission consultation is warranted; and
* * * * *

VI. Enforcement Actions

* * * * *

B. Civil Penalty

* * * * *

2. Civil Penalty Adjustment Factors

* * * * *
    (b) Corrective action.
    A civil penalty for violations involving discrimination should 
normally only be mitigated if the licensee takes prompt, 
comprehensive corrective action that (1) addresses the broader 
environment for raising safety concerns in the work place, and (2) 
provides a remedy for the particular discrimination at issue.
* * * * *

VII. Exercise of Discretion

* * * * *

B. Mitigation of Enforcement Sanction

* * * * *
    (7) Enforcement discretion may be exercised for discrimination 
cases where a licensee who, without the need for government 
intervention, identifies an issue of discrimination and takes 
prompt, comprehensive, and effective corrective action to address 
both the particular situation and the overall work environment for 
raising safety concerns. Similarly, enforcement may not be warranted 
where a complaint is filed with the Department of Labor (DOL) under 
Section 211 of the Energy Reorganization Act of 1994, as amended, 
but the licensee settles the matter before the DOL makes an initial 
finding of discrimination and addresses the overall work 
environment. Alternatively, if a finding of discrimination is made, 
the licensee may choose to settle the case before the evidentiary 
hearing begins. In such cases, the NRC may exercise its discretion 
not to take enforcement action when the licensee has addressed the 
overall work environment for raising safety concerns and has 
publicized that a complaint of discrimination for engaging in 
protected activity was made to the DOL, that the matter was settled 
to the satisfaction of the employee (the terms of the specific 
settlement agreement need not be posted), and that, if the DOL Area 
Office found discrimination, the licensee has taken action to 
positively reemphasize that discrimination will not be tolerated. 
Similarly, the NRC may refrain from taking enforcement action if a 
licensee settles a matter promptly after a person comes to the NRC 
without going to the DOL. Such discretion would normally not be 
exercised in cases in which the licensee does not appropriately 
address the overall work environment (e.g., by using training, 
postings, revised policies or procedures, any necessary disciplinary 
action, etc., to communicate its policy against discrimination) or 
in cases that involve: allegations of discrimination as a result of 
providing information directly to the NRC, allegations of 
discrimination caused by a manager above first-line supervisor 
(consistent with current Enforcement Policy classification of 
Severity Level I or II violations), allegations of discrimination 
where a history of findings of discrimination (by the DOL or the 
NRC) or settlements suggests a programmatic rather than an isolated 
discrimination problem, or allegations of discrimination which 
appear particularly blatant or egregious.
* * * * *

Supplement VII--Miscellaneous Matters

    B. Severity Level II--Violations involving for example:
* * * * *
    7. A failure to take reasonable action when observed behavior 
within the protected area or credible information concerning 
activities within the protected area indicates possible unfitness 
for duty based on drug or alcohol use;
    8. A deliberate failure of the licensee's Employee Assistance 
Program (EAP) to notify licensee's management when EAP's staff is 
aware that an individual's condition may adversely affect safety 
related activities; or
    9. The failure of licensee management to take effective action 
in correcting a hostile work environment.
    C. Severity Level III--Violations involving for example:
* * * * *
    8. A failure to assure, as required, that contractors or vendors 
have an effective fitness-for-duty program;
    9. A breakdown in the fitness for duty program involving a 
number of violations of the basic elements of the fitness-for-duty 
program that collectively reflect a significant lack of attention or 
carelessness towards meeting the objectives of 10 CFR 26.10; or
    10. Threats of discrimination or restrictive agreements which 
are violations under NRC regulations such as 10 CFR 50.7(f).
    D. Severity Level IV - Violations involving for example:
* * * * *
    4. Isolated failures to meet basic elements of the fitness-for-
duty program not involving a Severity Level I, II, or III violation;
    5. A failure to report acts of licensed operators or supervisors 
pursuant to 10 CFR 26.73; or
    6. Discrimination cases which, in themselves, do not warrant a 
Severity Level III categorization.
* * * * *
    Dated at Rockville, MD, this 21st day of November, 1994.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Acting Secretary of the Commission.
[FR Doc. 94-29171 Filed 11-25-94; 8:45 am]
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