[Federal Register Volume 62, Number 38 (Wednesday, February 26, 1997)]
[Notices]
[Pages 8785-8790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4702]


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NUCLEAR REGULATORY COMMISSION

Safety-Conscious Work Environment

AGENCY: Nuclear Regulatory Commission.

ACTION: Request for public comment.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is considering several 
strategies in addressing the need for its licensees to establish and 
maintain a safety-conscious work environment. As discussed herein, the 
Commission is evaluating the development of a standardized approach 
that would (1) require licensees to establish and maintain a safety-
conscious work environment with clearly defined attributes; (2) 
establish certain indicators that may be monitored and that, when 
considered collectively, may provide evidence of an emerging adverse 
trend; and (3) outline specific remedial actions that the Commission 
may require when it determines that a particular licensee has failed to 
establish or maintain a safety-conscious work environment. Before 
proceeding further, the NRC is seeking comments and suggestions on the 
various strategies being considered.

DATES: The comment period expires May 27, 1997. Comments received after 
this date will be considered if it is practical to do so, but the 
Commission is able to assure consideration only for comments received 
on or before this date.

ADDRESSES: Submit written comments to: David Meyer, Chief, Rules Review 
and Directives Branch, Division of

[[Page 8786]]

Freedom of Information and Publication Services, Office of 
Administration, Mail Stop: T6D59, U. S. Nuclear Regulatory Commission, 
Washington, DC 20555. Hand deliver comments to: 11555 Rockville Pike, 
Rockville, Maryland, between 7:45 am and 4:15 pm, Federal workdays. 
Copies of comments received 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:

I. Background

    In May 1996, the Commission issued a policy statement on the 
``Freedom of Employees in the Nuclear Industry to Raise Safety Concerns 
Without Fear of Retaliation'' [FR 24336]. This policy statement had 
first been published in draft in February 1995 [FR 7592], and was based 
on modified recommendations of the Allegation Review Team report 
published as NUREG-1499. The basic thrust of the policy statement was 
to clarify the

* * * Commission's expectation that licensees and other employers 
subject to NRC authority will establish and maintain a safety-
conscious work environment in which employees feel free to raise 
concerns both to their management and the NRC without fear of 
retaliation.

    The Commission emphasized that problems in the work environment are 
most effectively prevented, identified, and resolved from within the 
licensee's organization, rather than by government or other outside 
involvement. The points of focus in the policy statement--effective 
processes for identifying and resolving concerns, improvements in 
contractor awareness, senior licensee management involvement in 
resolving allegations of harassment and intimidation (H&I), and 
employees' responsibilities in raising safety concerns--were considered 
generally applicable to all licensees and contractors.
    While the philosophy and message of the policy statement continue 
to be appropriate, the findings of the Millstone Independent Review 
Group (MIRG) and compilation of industry-wide allegation data suggest 
that not all licensees are successful in maintaining a safety-conscious 
work environment as described in the policy statement. As discussed in 
NUREG-1499,

the perception of discrimination, as viewed by those involved and 
other employees, may be more important than whether discrimination 
actually occurred in setting the tone for the work environment.

    When this perception becomes widespread in a licensee's 
organization, it becomes exceedingly difficult for licensee management 
(1) to obtain the cooperation of their employees in identifying and 
eliminating problems adversely affecting the safety-conscious work 
environment, (2) to reverse the perception that raising safety concerns 
may cause retaliation (or that management does not welcome concerns 
being raised), and (3) to regain the trust and confidence of the 
workforce. Experience at several NRC licensed facilities suggests that 
additional regulatory actions may be warranted when there is evidence 
that the licensee may not be maintaining a safety-conscious work 
environment.

II. Discussion of Using a Standardized Approach to This Issue

    The Commission believes that the NRC should focus more attention 
on, and, if possible, devise additional mechanisms to identify, the 
emergence of adverse trends in licensees' abilities to maintain a 
safety-conscious work environment.1 While identifying these 
emerging trends is a difficult task, the Commission believes that the 
effort required will be much less than that required in ``turning 
around'' a facility where the safety-conscious work environment has 
already deteriorated. Moreover, if indicators can be identified that, 
when monitored, will provide a more timely, reliable alert to the NRC 
of emerging problems in a licensee's safety-conscious work environment, 
the Commission believes that appropriate intervention will result in a 
significant contribution to safety and will be well worth the effort.
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    \1\ In NUREG-1499, the Allegation Review Team provided an 
analysis of indications that a licensee's safety-conscious work 
environment may be deteriorating. Similar discussions and additional 
analysis appear in the September 1996 report of the Millstone 
Independent Review Group (MIRG).
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    Evaluating the safety consciousness of a licensee's work 
environment is highly subjective, and achieving reliability in such an 
evaluation requires careful judgment. Any one piece of data (e.g., a 
relatively high number of allegations made to the NRC from a given 
facility) can be ambiguously interpreted, and focusing on individual 
data to the exclusion of other information can be misleading. As 
discussed below, the Commission believes that judgments made in this 
area should be the result of periodic reviews by senior NRC management. 
In addition, the analyses made in this area may become more reliable 
and consistent if the Commission clarifies and promotes (1) a standard 
definition and attributes of a safety-conscious work environment; (2) 
criteria to be considered as indicators that a licensee's safety-
conscious work environment may be deteriorating; and (3) NRC actions to 
be considered in dealing with situations where these criteria are not 
met (i.e., where signs indicate the emergence of an adverse trend).
    As used in this context, a safety-conscious work environment is 
defined in the Commission's May 1996 Policy Statement as a work 
environment in which employees are encouraged to raise concerns and 
where such concerns are promptly reviewed, given the proper priority 
based on their potential safety significance, and appropriately 
resolved with timely feedback to employees. Attributes of a safety-
conscious work environment include (1) a management attitude that 
promotes employee involvement and confidence in raising and resolving 
concerns; (2) a clearly communicated management policy that safety has 
the utmost priority, overriding, if necessary, the demands of 
production and project schedules; (3) a strong, independent quality 
assurance organization and program; (4) a training program that 
encourages a positive attitude toward safety; and (5) a safety ethic at 
all levels that is characterized by an inherently questioning attitude, 
attention to detail, prevention of complacency, a commitment to 
excellence, and personal accountability in safety matters.
    Departures from such a safety-conscious work environment are not 
always easy to detect. However, certain indicators, particularly when 
considered collectively, may be viewed as providing evidence of an 
emerging adverse trend. These include: (1) Adverse findings by the 
Department of Labor (DOL) or NRC's Office of Investigation (OI) 
concluding that discrimination has occurred against employees for 
engaging in protected activity; (2) in particular, a DOL or OI finding 
that a hostile work environment existed for a licensee employee, or 
that senior licensee management was involved in the discrimination; (3) 
a significant increase in the rate (or a sustained high number) of 
complaints to the NRC that licensee employees are being subjected to 
harassment and intimidation (H&I); (4) a significant increase (or a 
sustained high number) of technical allegations made to the NRC, 
particularly if accompanied by low usage or a decrease in use of the 
licensee's employee concern program or other licensee channels for 
reporting concerns; and (5) other indications that

[[Page 8787]]

the licensee's employee concerns program or other programs for 
identifying and resolving problems are ineffective. Such indications 
might include: delays in or absence of feedback for concerns raised to 
the ECP; breaches of confidentiality for concerns raised to the ECP; 
the lack of effective evaluation, follow-up, or corrective action for 
concerns raised to the ECP or findings made by the licensee's QA 
organization; overall licensee ineffectiveness in identifying safety 
issues; the occurrence of repetitive or willful violations; a licensee 
emphasis on cost-cutting measures at the expense of safety 
considerations; and/or poor communication mechanisms within or among 
licensee groups. In some cases, these indications may be identified 
during routine inspections.
    The licensee's departure from a safety-conscious work environment 
can develop gradually over a period of years and with varying degrees 
of licensee management awareness. As stated above, any one of the 
symptoms given in the preceding paragraph, taken by itself, may not 
indicate deterioration in the licensee's overall safety-conscious work 
environment, particularly if not accompanied by overall problems in 
operational or safety performance.2 Related judgments as to the 
need for NRC intervention should not be made in isolation. The 
Commission believes that such judgments, as well as the ensuing 
decisions on what action would be appropriate in a given situation, 
would be appropriate topics of discussion at the NRC's periodic Senior 
Management Meetings.
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    \2\ However, these symptoms may be advance indications, and any 
resulting decline in operational or safety performance may not 
emerge immediately. For this reason, the absence of operational or 
safety performance problems should not, by itself, be taken as 
assurance that the safety-conscious work environment has not 
deteriorated.
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    Once the judgment is made that a licensee's safety-conscious work 
environment has deteriorated, the Commission's choice of action would 
be based on the symptoms that led to that judgment. Under this 
approach, however, the Commission would identify and promote standard 
options for agency action rather than treating each licensee situation 
on a case-by-case basis. Those options might include (but would not be 
limited to): (1) Requiring the licensee to establish a formal employee 
concerns program (if one does not already exist); (2) ordering the 
licensee to conduct an independent survey of the environment for 
raising concerns, with periodic follow-up surveys to monitor progress; 
(3) ordering the licensee to establish an independent group for 
oversight of maintaining a safety-conscious work environment (similar 
to that prescribed by the October 24, 1996, Millstone order); or (4) 
mandating that the licensee establish a ``holding period'' policy to be 
applied in cases where an employee complains of being discriminated 
against for engaging in protected activity (additional discussion of 
the holding period concept is given below).

III. Establishing a Regulation on Safety-Conscious Work Environment

    One strategy to standardizing the Commission's approach to this 
area would be to initiate a rulemaking process, in which the 
regulations of 10 CFR Part 50, ``Domestic Licensing of Production and 
Utilization Facilities,'' would be amended. The possible value of 
promulgating this strategy as a regulation is as follows. First, it 
would codify the safety-conscious work environment as a requirement, 
clearly linked to the licensee's safety ethic and to the overall 
fitness of the licensee to operate the facility. Second, such a 
regulation could successfully differentiate between licensees who 
perform well in this area and those who are cause for concern, in that 
prescriptive requirements would only be remedial (i.e., prescribed for 
those licensees who fail to establish and maintain a sufficiently 
safety-conscious work environment on their own efforts). Third, for 
those cases requiring Commission intervention in the form of issuing 
orders, the presence of a standardized process (i.e., as codified in a 
regulation or suggested in a policy statement) may result in less 
litigation than would result if such orders were devised and issued 
case by case in the absence of such a standardized approach.3
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    \3\ Establishing and publishing a standardized approach 
clarifies the Commission's intention to respond to particular 
situations with particular actions. As a result of this 
clarification, any subsequent actions the Commission takes that are 
consistent with this expressed intention are less likely to be seen 
as arbitrary or prejudicially motivated, and therefore are less 
likely to be challenged. This logic is consistent with previous 
Commission experience in promulgating and implementing the NRC 
Enforcement Policy (NUREG 1600).
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    The Commission's experience indicates that licensees may 
successfully use differing methods in achieving a safety-conscious work 
environment, and what may be necessary for some licensees is 
unnecessary for others. Under the approach discussed herein, however, a 
regulation could be written such that, while the Commission is prepared 
to take decisive action where licensees have been unsuccessful, these 
actions are not invoked so long as licensees meet the basic criteria of 
a safety-conscious work environment.
    Finally, while such a regulation might provide additional 
standardization and consistency where Commission action is necessary, 
the primary purpose would be to focus the licensee's attention in this 
area and reduce the need for Commission involvement in directing 
licensees' actions in this area. The intended effect of this rule would 
be for licensees (1) to become more aware of the importance the 
Commission places on establishing and maintaining a safety-conscious 
work environment, (2) to become more sensitive to indications of 
adverse trends emerging at their own facilities, and (3) to become more 
effective in taking actions to correct such trends and preserve the 
safety-conscious work environment before it deteriorates to a point 
that demands Commission intervention. This intention is consistent with 
the Commission's recognition, as presented in the May 1996 Policy 
Statement, that departures from a safety-conscious work environment are 
much more effectively corrected from within a licensee's organization 
than by the intervention of government or another outside agency.

IV. Inclusion in the NRC Enforcement Policy or Issuance of a Separate 
Policy Statement

    Another strategy toward standardizing the Commission's approach to 
this area would be to revise NUREG-1600, ``General Statement of Policy 
and Procedures for NRC Actions'' (generally known as the NRC 
Enforcement Policy), to include this standardized approach. While this 
strategy would not be binding on licensees in the sense of requiring, 
by regulation, a safety-conscious work environment, it would retain 
most of the other advantages of codification described above. This 
strategy would still successfully differentiate between licensees who 
perform well in this area and licensees who give cause for concern; it 
should heighten licensee awareness of the Commission's approach to 
evaluating licensee performance in this area; it should make licensees 
more sensitive to indicators of emerging adverse trends at their 
facilities; and it would provide licensees the opportunity to correct 
such trends before the safety-conscious work environment deteriorates 
to a point requiring Commission intervention.
    The logic of including such an approach in the NRC Enforcement 
Policy is that it would contain standard criteria that, after 
consideration, could

[[Page 8788]]

result in issuing orders to licensees. An alternative, however, would 
be to issue this approach in a separate Commission policy statement, to 
ensure that NRC monitoring of licensee performance in this area is 
separately administered and evaluated.

V. Explanation of the ``Holding Period'' Concept

    Within the strategies being evaluated and discussed herein, the 
concept of a ``holding period'' warrants additional clarification. The 
holding period concept (sometimes also referred to as a ``safe harbor'' 
provision) was first introduced by the Allegation Review Team as a 
recommendation of NUREG-1499. Among other aspects, the Allegation 
Review Team recommended that, in applicable cases, the NRC Executive 
Director for Operations (or other senior NRC management) send a letter 
to senior licensee management reminding them of the Commission's 
policies on discrimination and the use of the holding period, and 
requesting a report to the NRC detailing the licensee's course of 
action. The holding period concept was carried forward to the 
Commission's May 1996 Policy Statement as a policy or action that a 
licensee might voluntarily choose to introduce; however, the Commission 
rejected the provision of sending a letter encouraging the licensee's 
use of the holding period in applicable cases. The Commission believes 
that several alternative strategies for mandating use of a holding 
period policy may merit reconsideration, particularly as an option for 
dealing with specific cases where a licensee's environment for raising 
safety concerns has significantly deteriorated.
    In general, a licensee's holding period policy would provide that, 
when an employee complains that he or she has been discriminated 
against for engaging in protected activity, the licensee will maintain 
that employee's pay and benefits until the licensee has investigated 
the complaint, reconsidered the facts, negotiated with the employee, 
and informed the employee of a final decision on the matter. After the 
employee has been notified of the licensee's decision, the holding 
period would continue for an additional 2 weeks to allow a reasonable 
time for the employee to file with the DOL. If the employee files 
within that time, the licensee would continue the holding period until 
the DOL Area Office Director has made a finding based on the Area 
Office investigation.4
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    \4\ In other words, the holding period would be in effect at 
least until the initial decision made under the DOL process. Under 
Section 211 of the Energy Reorganization Act, the DOL only provides 
a temporarily effective remedy to the complainant (i.e., a 
reinstatement of pay and benefits) after an Administrative Law 
Judge's (ALJ's) adverse finding that discrimination has occurred. 
Based on a NUREG 1499 recommendation, the Commission is considering 
legislation, to be developed in coordination with the DOL, in which 
certain adjustments would be made to the current DOL process, in 
that the DOL would be provided additional time to conduct a more in-
depth initial investigation, and a temporarily effective remedy 
could be provided to the complainant based on the initial 
investigation. Thus, if the holding period were extended to the 
conclusion of the initial DOL investigation, an employee who alleged 
discrimination for engaging in protected activity would not be 
removed from pay and benefits at any point in the subsequent 
investigation and adjudication process, so long as the DOL continued 
to find in the employee's favor.
    It is important to explain that the Commission is not attempting 
to preempt the DOL's role in providing a remedy to the complainant. 
The purpose of the holding period is to neutralize the conflict in 
the workplace until the dispute is resolved without presumption as 
to the outcome, thereby minimizing the chilling effect on the rest 
of the workforce. The chilling effect can arise, in this situation, 
when other employees perceive that a fellow worker has been 
allegedly discriminated against for engaging in protected activity, 
and immediately placed at a disadvantage in pursuing a resolution by 
the loss of pay and benefits.
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    As discussed in NUREG-1499, the holding period is designed to 
minimize onsite conflict (and any associated chilling effect) generated 
by the perception that an employee may have been retaliated against for 
raising concerns. In addition, the holding period may be used to 
demonstrate management support for maintaining a safety-conscious work 
environment. As stated in the Commission's May 1996 Policy Statement:

    By this approach, management would be acknowledging that 
although a dispute exists as to whether discrimination occurred, in 
the interest of not discouraging other employees from raising 
concerns, the employee involved in the dispute will not lose pay and 
benefits while the action is being reconsidered or the dispute is 
being resolved.

    In the past, both the staff recommendations and the Commission's 
policy have been to make the use of a holding period entirely 
voluntary. Even under the regulation or policy statement strategies 
discussed in Sections III and IV above, the use of a holding period (as 
well as other measures designed to promote a safety-conscious work 
environment) would be entirely voluntary for most licensees. However, 
in cases where the Commission determined that the licensee's safety-
conscious work environment was deteriorating to the point of warranting 
additional NRC intervention, such a regulation or policy would provide 
that ordering the licensee's establishment of a holding period policy 
would be one of the options available at the discretion of the 
Commission.
    Nothing in the application of such a Commission order or the 
resulting licensee holding period policy would mandate that a licensee 
employee must participate in or agree to the use of a holding period in 
a given case. In addition, for any case in which the Commission ordered 
the licensee to establish such a holding period policy, the licensee 
would continue to have the option as to whether a given complainant 
should be restored to his or her previous position, be assigned a new 
position, or be given administrative leave with pay and benefits. 
Furthermore, the Commission would continue to hold that, when a holding 
period policy has been established, the employer's action of not 
restoring a complainant to his or her previous position would not be 
considered an additional act of discrimination if the DOL AOD or 
Administrative Law Judge (ALJ) subsequently found in favor of the 
complainant, provided that (1) the employee had agreed to the 
provisions of the holding period, (2) pay and benefits were maintained, 
and (3) the employer restored the employee to the previous position 
without career prejudice upon a DOL finding of discrimination. Finally, 
the licensee bears responsibility for making legitimate personnel 
decisions, including termination or reassignment of an employee whose 
presence in the workplace could adversely affect safety. Neither the 
use of a holding period policy nor any other licensee action required 
by NRC order would relieve the licensee of this responsibility.5 
The function of the holding period is to counteract the chilling effect 
that may result when employees perceive that a fellow employee may have 
been terminated as the result of raising safety concerns, and thus 
placed at a financial disadvantage while seeking redress.
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    \5\ However, if a dispute arose as to whether the licensee had a 
legitimate purpose (i.e., the employee maintained that the action 
was based on engaging in protected activity), the licensee would 
still be required to maintain pay and benefits. In such a case, 
administrative leave with pay and benefits might be the best option.
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    The Commission recognizes that the holding period concept has 
certain perceived drawbacks, as discussed by the Allegation Review Team 
in NUREG-1499. Some potential exists for abuse of a holding period 
policy, and it may be viewed as unfair to ask licensees to continue pay 
and benefits for employees whom the licensee believes are 
undeserving.6 In addition, other factors

[[Page 8789]]

(such as licensee down-sizing actions) may contribute to the occurrence 
of a significant increase in complaints of discrimination. The 
Commission would give these and other factors careful consideration 
before requiring this approach for any specific licensee.7 
However, the Commission believes that where there has been a 
significant failure to maintain a safety-conscious work environment, 
these drawbacks, including any financial burden incurred by the 
licensee, would be clearly offset by the benefits of instilling a 
general perception that senior licensee management is serious about 
becoming involved, reconsidering the facts, finding a resolution, and 
minimizing the adverse impact on the complainant during these 
deliberations. Where a chilling effect would otherwise have resulted 
from a more confrontational licensee approach, these benefits are 
clear; in addition, the willingness of licensee management to work 
toward internal resolution of such a conflict may result in financial 
savings (1) by avoiding lengthy, expensive litigation in the case at 
hand and (2) by offsetting the possibility of additional cases that may 
result from a chilling effect. Most importantly, the avoidance of a 
chilling effect may result in having safety issues identified that 
might not otherwise have been raised.
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    \6\ As discussed in Sections III and IV, the holding period 
would only be one of several options that the NRC would have at its 
disposal under such a regulation or policy. Based on considering the 
specific attributes of a particular licensee's environment, the NRC 
might decide that requiring the use of a site-wide employee survey, 
an independent third-party oversight of the licensee's employee 
concern program, or some other measure should be required before, 
after, instead of, or in conjunction with a holding period policy.
    \7\ To be effective, the complainant should not be required to 
forfeit any pay or benefits received during the holding period if 
the DOL subsequently found that the licensee did not discriminate 
against the complainant. While such an approach could be perceived 
as unfair to the licensee, the Commission believes that such a 
burden is warranted in view of the benefit to the workplace 
environment.
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VI. Discussion of Alternative Strategy in Requiring a Holding Period 
Policy and Periodic Site Surveys

    The Commission has considered an alternative strategy, in which all 
licensees would be required to institute a holding period policy and 
periodic site surveys, rather than only those licensees who perform 
poorly in this area. This approach would not differentiate to the same 
extent between those licensees who perform well in this area and those 
who give cause for concern. However, this approach would ensure that 
all licensees periodically monitor their work environments to assess 
the degree to which employees feel free to raise safety concerns. In 
addition, this approach would ensure that, for any situation in which 
an employee believes that he or she has been discriminated against for 
raising safety concerns, that employee would not be placed at a 
financial disadvantage (i.e., by the loss of pay and benefits) while 
pursuing a resolution. Under this approach, such an employee would 
continue to receive pay and benefits under the holding period even if 
the licensee had never before had such a complaint.
    As stated earlier, the purpose of the holding period is to 
neutralize the conflict in the work environment until the dispute is 
resolved without presumption as to the outcome, thereby minimizing the 
chilling effect on the rest of the workforce. The chilling effect can 
arise when other employees perceive that a fellow worker has been 
discriminated against for engaging in protected activity, and then 
immediately placed at a disadvantage in pursuing a resolution by the 
loss of pay and benefits. By requiring all licensees to establish and 
implement a holding period policy, this alternative approach would 
attempt to offset this potential chilling effect on an industry-wide 
basis. Arguably, the benefits may not outweigh the costs in this 
approach, particularly in cases where the discrimination issue is a 
relatively isolated occurrence in an otherwise safety-conscious 
environment.

VII. Requests for Comments on the Approaches Discussed Herein

    The Commission is considering various strategies that would clarify 
the responsibility of licensees to establish and maintain a safety-
conscious work environment. The purpose of describing these strategies 
and posing certain questions is to illustrate the evaluation that has 
occurred to date, and to request public comment on the potential 
effectiveness of such actions, the advantages and disadvantages of the 
strategies described, and any suggestions on additions or deletions 
that would make these strategies more effective in achieving their 
stated purpose. Commenters should feel free to submit their responses 
to these questions anonymously; however, any information provided as to 
a commenter's background or degree of experience in this area will be 
helpful in analyzing and understanding the comments.
    1. Should the Commission Proceed with Establishing a Standardized 
Approach to Ensuring That Licensees Establish and Maintain a Safety-
Conscious Work Environment?
    2. If Such an Approach Were Adopted, Would It Be Most Effective as: 
(a) A Proposed Rulemaking that Would Amend Part 50; (b) a revision to 
the NRC Enforcement Policy; or (c) a separately issued Commission 
policy statement?
    3. What Additions or Deletions to the Draft Language of Such a 
Regulation or Policy, as Presented in Section IX, Below, Would Increase 
Its Effectiveness?
    4. What Are the Advantages or Disadvantages of Implementing Such a 
Standardized Approach? (Comments are specifically requested as to 
whether the use of a holding period would achieve the objective of 
reducing the potential for a chilling effect in the work environment.)
    5. What other means or indicators might the NRC use to evaluate 
licensee performance in this area other than the indicators mentioned 
in the language of Section IX, below?
    6. What Would Be the Advantages or Disadvantages of Implementing 
the Alternative Approach to Requiring the Holding Period, as Described 
in Section VI, Above?
    7. What Other Approaches Not Considered Here Would Be More 
Effective in Ensuring That Licensees Establish and Maintain a Safety-
Conscious Work Environment?

VIII. Request for Regulatory Analysis Information

    If a change of requirements is needed, the NRC will prepare a 
regulatory analysis to support any proposed or final rule. The analysis 
will examine the costs and benefits of regulatory alternatives 
available to the Commission.
    The NRC requests public comment on the costs and benefits, normal 
business practices, new trends, and other information that should be 
considered in any such regulatory analysis. Comments may be submitted 
as indicated in the ADDRESSES heading.

IX. Specific Examples of Possible Language for a Regulation or 
Commission Policy

    The NRC has developed language that may be applicable to a revision 
of Part 50 or (with necessary modifications) to a policy statement. 
This draft text reflects many of the issues as described. The NRC 
solicits comments on the following text, including the extent to which 
the text addresses the issues described. The NRC also solicits 
suggestions of alternative text that would address these issues.

[[Page 8790]]

Proposed Language: Safety-Conscious Work Environment

    (a) Licensees shall establish and maintain a safety-conscious work 
environment in which employees are encouraged to raise safety and 
regulatory concerns, and where such concerns are promptly reviewed, 
given priority based on their potential safety significance, and 
appropriately resolved with timely feedback to the originator of the 
concern. Attributes of a safety-conscious work environment include:
    (1) A management attitude that promotes employee involvement and 
confidence in raising and resolving concerns;
    (2) A clearly communicated management policy that safety has the 
utmost priority, overriding, if necessary, the demands of production 
and project schedules;
    (3) A strong, independent quality assurance organization and 
program;
    (4) A training program that encourages a positive attitude toward 
safety;
    (5) A safety ethic at all levels that is characterized by an 
inherently questioning attitude, attention to detail, prevention of 
complacency, a commitment to excellence, and personal accountability in 
safety matters.
    (b) When circumstances occur that could adversely impact the 
safety-conscious environment, or when conditions arise that indicate 
the potential emergence of an adverse trend in the safety-conscious 
work environment, the licensee shall take action as required to ensure 
that the safety-conscious environment is preserved. Indicators that may 
be considered as possible evidence of an emerging adverse trend 
include, but are not limited to:
    (1) Adverse findings by the Department of Labor or the NRC Office 
of Investigation (OI) concluding that discrimination has occurred 
against employees for engaging in protected activity, including a 
finding of the existence of a hostile work environment;
    (2) A significant increase in the rate (or a sustained high number) 
of allegations made to the NRC that licensee employees are being 
subjected to harassment and intimidation for engaging in protected 
activity;
    (3) A significant increase in the rate (or a sustained high number) 
of allegations made to the NRC concerning matters of safety or 
regulatory concern, particularly if accompanied by low usage or a 
decrease in use of the licensee's employee concern program (ECP) or 
other licensee channels for reporting safety and regulatory concerns;
    (4) Other indications that the licensee's ECP or other programs for 
identifying and resolving safety and regulatory concerns are 
ineffective. Such indications might include: delays in or absence of 
feedback for concerns raised to the ECP; breaches of confidentiality 
for concerns raised to the ECP; the lack of effective evaluation, 
follow-up, or corrective action for concerns raised to the ECP or 
findings made by the licensee's QA organization; overall licensee 
ineffectiveness in identifying safety issues; the occurrence of 
repetitive or willful violations; a licensee emphasis on cost-cutting 
measures at the expense of safety considerations; and/or poor 
communication mechanisms within or among licensee groups.
    (c) The presence of one or more of the indicators discussed in 
paragraph (b) of this section may or may not, in isolation, be 
considered evidence of deterioration in the licensee's safety-conscious 
work environment. Evaluation of the licensee's safety-conscious work 
environment should consider these indicators in the context of the 
overall work environment, including the presence or absence of other 
indicators, and the presence or absence of related licensee safety and 
performance issues.
    (d) If, based on a review of indicators as discussed in paragraphs 
(b) and (c) of this section, the Executive Director for Operations 
determines that the licensee has failed to establish and maintain a 
safety-conscious work environment as discussed in paragraph (a) of this 
section, the NRC at its discretion may require the licensee to take 
action. This action may include (but is not limited to) ordering one or 
more of the following:
    (1) Establishment of a formal employee concerns program (if one 
does not already exist);
    (2) Performance of an independent survey of the licensee's 
environment for raising safety and regulatory concerns, with periodic 
follow-up surveys to monitor change;
    (3) Establishment of an independent group for oversight of licensee 
performance in establishing and maintaining a safety-conscious work 
environment;
    (4) Establishment of a ``holding period'' policy, to be applied in 
cases where an employee of the licensee or its contractor registers a 
complaint of having been discriminated against for engaging in 
protected activity. The holding period policy requires that, when such 
an employee submits to the licensee a complaint that he or she has been 
discriminated against for engaging in protected activity, the licensee 
will maintain that employee's pay and benefits until the licensee has 
investigated the complaint, reconsidered the facts, negotiated with the 
employee, and informed the employee of a final decision on the matter. 
After the licensee has informed the employee of its final decision, the 
holding period of continued pay and benefits will continue for an 
additional 2 weeks to allow a reasonable time for the employee to file 
a complaint of discrimination with the DOL. If, by the end of that 2-
week period, the employee has filed with the DOL a complaint of 
discrimination for engaging in protected activity, the licensee will 
maintain the holding period of continued pay and benefits until the DOL 
has made a finding based on its initial investigation of the employee's 
complaint.
    (5) Additional enforcement action pursuant to Subpart B of Part 2, 
including civil penalties.

    Dated at Rockville, Maryland, this 19th day of February, 1996.

    For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 97-4702 Filed 2-25-97; 8:45 am]
BILLING CODE 7590-01-P