[Federal Register Volume 69, Number 97 (Wednesday, May 19, 2004)]
[Proposed Rules]
[Pages 28849-28851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11296]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 69, No. 97 / Wednesday, May 19, 2004 / 
Proposed Rules  

[[Page 28849]]



NUCLEAR REGULATORY COMMISSION

10 CFR Parts 30, 40, 50, 60, 61, 70, 72, and 76

[Docket No. PRM-30-62]


Union of Concerned Scientists; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking: denial.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking (PRM-30-62) submitted by the Union of Concerned 
Scientists (UCS). The petition requested that the NRC amend its 
employee protection regulations to require licensees to provide 
training to their management to make certain that their management is 
aware of its obligations under these regulations. Subsequent to 
submission of PRM-30-62, an event occurred which altered the processing 
for disposition of the Petition. On August 3, 2000, the Commission 
announced in the Federal Register the formation of a Discrimination 
Task Group (DTG) to evaluate NRC's processes used for handling 
discrimination allegations and violations of employee protection 
standards. A Senior Management Review Team (SMRT) was established to 
review the final recommendations of the DTG. Because the nature and 
concerns of PRM-30-62 fell within the objectives of the DTG charter, 
the NRC, with the petitioner agreeing, decided to incorporate 
consideration of the issues raised in the petition into the activities 
of the DTG. The NRC is denying the petition for rulemaking because it 
has determined that instead of promulgating new rules, the best 
approach to achieve the intent of the petition is through enhancement 
of the enforcement policy to encourage training, along with development 
of regulatory guidance and communicating this guidance to licensee 
management and to its employees.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, and NRC's letter of denial to the petitioner may be examined, 
and copied for a fee at the NRC Public Document Room, Room O1F23, 11555 
Rockville Pike, Rockville, MD. These documents also may be viewed and 
downloaded electronically via the rulemaking website.
    The NRC maintains an Agencywide Document Access and Management 
System (ADAMS), which provides text and image files of NRC's public 
documents. These documents may be accessed through the NRC's Public 
Electronic Reading Room on the Internet at http://www.nrc.gov/reading-rm/adams.html. If you do not have access to ADAMS or if there are 
problems in accessing the documents located in ADAMS, contact the NRC 
Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-
4737, or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: James R. Firth, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, Telephone (301) 415-6628, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

The Petition

    The petition, assigned Docket No. PRM-30-62, was filed with the NRC 
by the Union of Concerned Scientists (UCS) on August 13, 1999. Notice 
of receipt of the petition and request for public comment was published 
in the Federal Register on October 27, 1999 (64 FR 57785). The 
petitioner requested that the NRC amend its employee protection 
regulations to require licensees to provide training to their 
management (i.e., first line supervisors, managers, directors, and 
officers) to make certain they are aware of their obligations under 
these regulations, and that individual managers be held accountable for 
their actions under the deliberate misconduct regulations (e.g., 10 CFR 
50.5). The petitioner believes that this would prevent licensee 
management from using ``ignorance of the law'' as an excuse for 
violating employee protection regulations and allow the NRC to take 
enforcement action against individual managers for such violations.
    Presently, the Commission's regulations prohibiting discrimination 
against employees are found at 10 CFR 30.7, 40.7, 50.7, 60.9, 61.9, 
70.7, 72.10, and 76.7. These regulations provide notice that 
discrimination against an employee for engaging in protected activities 
as defined in Section 211 of the Energy Reorganization Act (ERA) is 
prohibited; and that civil penalties and other enforcement action may 
be taken against licensees for violations of these regulations by 
licensees or by their contractors or subcontractors. The petition noted 
that between March 1996 and August 1999, the NRC took escalated 
enforcement action 111 times against individuals. Within this period, 
the NRC took 23 enforcement actions against licensees for 
discriminating against nuclear workers who raised safety concerns. The 
petition states that despite identifying ``who'' in these 23 cases was 
responsible for violating the Federal regulations, the NRC took 
enforcement action against individuals on only four occasions.
    In 1991, the Commission promulgated its deliberate misconduct 
regulations (e.g., 10 CFR 50.5), (hereafter Deliberate Misconduct 
Rule). Pursuant to the Deliberate Misconduct Rule, the Commission may 
take enforcement action directly against individual employees of 
licensees, or applicants and contractors or subcontractors of licensees 
and applicants, who engage in deliberate misconduct that causes a 
licensee or applicant to be in violation of the Commission's 
regulations, including those prohibiting discrimination. The petitioner 
asserts, however, that in the past the NRC has failed to use the 
authority afforded by the Deliberate Misconduct Rule to take 
enforcement action against managers who have discriminated against 
employees raising safety concerns, because these individuals claimed 
that they were not aware of the provisions of the employee 
discrimination regulations. The petitioner therefore requests that 
licensees be required to provide training to their management on these 
regulations, so that managers will not be able to claim that they were 
unaware of these regulations, and so that enforcement action may thus 
be taken directly against managers who violate these regulations 
pursuant to the Deliberate Misconduct Rule.

[[Page 28850]]

Public Comments on the Petition

    On October 27, 1999, the NRC published a notice of receipt of a 
petition for rulemaking (64 FR 57785), filed by UCS on August 13, 1999, 
inviting interested persons to submit comments. The comment period 
closed on January 10, 2000. The NRC received 153 comment letters that 
included comments from several utilities, a professional association, a 
quasi-government agency, several universities, a number of private 
companies, a law firm, and numerous public citizens. The majority of 
the comment letters received, 146, favoring the petition voiced the 
same opinions as those provided in an ``action alert'' from the UCS to 
its subscribers asking them to contact the NRC to support the petition. 
Support for the petition focused on two concerns: First, the asserted 
inadequacy of NRC's regulations to protect nuclear plant workers who 
raise safety issues from discrimination or retaliation; and second, the 
failure of the NRC to enforce its employee protection regulations based 
on the rationale that individuals who discriminate against 
whistleblowers are not aware that their actions are illegal.
    There were seven comment letters opposed to the petition. Reasons 
for opposition to the petition included:
    (1) One commenter believed the petition is inconsistent with NRC 
policy, which does not include promulgation of a training requirement 
for each substantive regulation with which licensees must comply; and 
therefore, training should not be the subject of Federal regulation. It 
was noted that licensees already offer voluntary employee training to 
their managers on a wide range of regulatory issues (including employee 
protection) to maintain a Safety Conscious Work Environment (SCWE). 
Therefore, contrary to the petition, the commenter asserted that 
licensees already train their management in an effort to provide 
individual managers with a basic understanding of the laws prohibiting 
discrimination, including offering practical ways to address employee 
concerns. With respect to the content and type of training needed to 
respond to the petition, several commenters felt licensees need 
flexibility to identify the scope and substance of the training in 
order to fit the needs of employees at their individual facilities.
    (2) One commenter believed the petition failed to provide adequate 
justification to support the requested agency action because it failed 
to explain, among other things, why existing mechanisms to ensure 
compliance with the employee protection regulations, such as in 10 CFR 
50.7, including enforcement actions against licensees, are not 
sufficient to deter discriminatory behavior or encourage corrective 
action. In this regard, it was noted that an explicit requirement for 
training will not necessarily guarantee compliance with employee 
protection requirements or increase individual accountability because, 
in most cases, it is difficult to prove that adverse actions taken by 
licensee management were deliberate. To the commenter, the petitioner's 
inference that every employee protection violation necessarily includes 
a finding of deliberate misconduct against individuals as defined for 
example in 10 CFR 50.5 is overstated. The commenter believes that many 
cases involving alleged violations of the employee protection 
regulations result from good faith attempts by individual licensee 
managers to deal with difficult situations and not from deliberate 
attempts to discriminate against nuclear workers. The petitioner's 
assertion that there are frequent violations of the employee protection 
regulations was not supported by the facts provided in the petition in 
the commenter's view. However, the commenter noted that assuming the 
petitioner was correct, the fact there were 23 enforcement actions 
against licensees for violations of, in this case, 10 CFR 50.7 
requirements over a 3 year period from March 1996 through August 1999 
(less than 8 violations per year) does not demonstrate a widespread and 
pervasive industry problem that warrants a rule requiring employee 
protection training. Such a solution for issues involving human 
interactions and personalities will not solve all perceived problems of 
discrimination, and arguing that formal training will overcome this 
dilemma is simplistic.
    (3) One commenter noted the petition appears designed only to 
encourage additional punitive action against individuals by the NRC 
when discrimination findings are made. However, the commenter asserted 
that it was noted in the past (with no specific reference to where or 
when) that, in most cases, enforcement actions citing discrimination 
typically are based on circumstantial evidence and are often difficult 
to prove.
    (4) Several commenters noted that Section 211 of the ERA and the 
employee protection regulations such as in 10 CFR 50.7, Employee 
Protection, already set out the requirements that licensees and their 
contractors must meet to ensure that employees are free to raise safety 
concerns without fear of retaliation.

Intervening Actions

    Subsequent to receipt of the petition, an event occurred which 
altered the processing and schedule for disposition of PRM-30-62. On 
April 14, 2000, the NRC approved the establishment of a working group 
to evaluate the NRC processes for handling discrimination cases. The 
purpose of the working group was to: (1) Evaluate the NRC's handling of 
matters covered by its employee protection regulations; (2) propose 
recommendations for improvement of the NRC's process for handling such 
matters; (3) ensure that the application of the NRC enforcement process 
was consistent with the objective of promoting an environment where 
workers are free to raise safety concerns in accordance with the NRC's 
employee protection standards; and (4) promote active and frequent 
involvement of internal and external stakeholders in the development of 
recommendations for future changes to the process. On August 3, 2000, a 
notice was published in the Federal Register (65 FR 47806) announcing 
the formation of an NRC Discrimination Task Group (DTG) to evaluate the 
NRC processes used in the handling of discrimination allegations and 
violations of the employee protection regulations. The DTG's objective 
was to propose recommendations for revisions to the regulatory 
requirements, the enforcement policy, or other agency guidelines as 
appropriate. A Senior Management Review Team (SMRT) was established to 
review the final recommendations of the DTG. Because the nature and 
concerns of PRM-30-62 fell within the objectives of the DTG charter, 
the NRC, with the petitioner agreeing, decided to incorporate 
consideration of the issues raised in the petition into the activities 
of the DTG.
    The DTG submitted a report to the Commission with its findings and 
recommendations on December 12, 2002. The report was provided as an 
attachment to a paper sent to the Commission, SECY-02-0166, and was 
entitled, ``Policy Options and Recommendations for Revising the NRC's 
Process for Handling Discrimination Issues.''
    On March 26, 2003, the Commission issued a Staff Requirements 
Memorandum (SRM) on SECY-02-0166 approving the recommendations of the 
DTG, as revised by the SMRT and subject to the specific comments 
provided in the SRM. The SRM also stated that proposed guidance to 
licensees should be developed and

[[Page 28851]]

should emphasize training of licensee management as to its obligations 
under the employee protection regulations and provide information as to 
the recommended content of such training. Although the NRC believes the 
current employee protection regulations are adequate, clear, and 
sufficiently flexible to accommodate the concerns in PRM-30-62, the 
Commission believes that such guidance would further the NRC policy 
statement related to an SCWE.
    The DTG concluded that the petition would not correct the problem 
that was the basis for the petition. The fact that a licensee manager 
may have received training on the discrimination regulations does not 
constitute enough evidence to conclude that an adverse action taken was 
deliberate. Consistent with the Commission's direction in the SRM of 
March 26, 2003, regulatory guidance will be developed and made 
available for licensees' use that will consider those attributes that 
constitute an effective SCWE program. Developing such guidance is 
consistent with NRC's performance-based approach, which allows 
licensees flexibility to develop programs that are best suited for 
them.

Reasons for Denial

    The NRC is denying the petition for the following reasons:
    1. As discussed above, on March 26, 2003, the Commission issued a 
Staff Requirements Memorandum (SRM) on SECY-02-0166 approving the 
recommendations of the DTG, as revised by the SMRT and subject to the 
specific comments provided in the SRM. The SRM also stated that 
proposed guidance to licensees should be developed and should emphasize 
training of licensee management as to its obligations under the 
employee protection regulations and provide information as to the 
recommended content of such training. Although the NRC believes the 
current employee protection regulations are adequate, clear, and 
sufficiently flexible to accommodate the concerns in PRM-30-62, the 
Commission believes that such guidance would further the NRC policy 
statement related to an SCWE.
    2. The NRC has concluded that the petition would not correct the 
problem that was the basis for the petition. The fact that a licensee 
manager may have received training on the discrimination regulations 
does not constitute enough evidence to conclude that an adverse action 
taken was deliberate. Consistent with the Commission's direction in the 
SRM of March 26, 2003, regulatory guidance will be developed and made 
available for licensees' use that will consider those attributes that 
constitute an effective SCWE program. Developing such guidance is 
consistent with NRC's performance-based approach, which also allows 
licensees flexibility to develop programs that are best suited for 
them.
    In sum, no new information has been provided by the petitioner that 
supports the need to undertake rulemaking action to amend the 
requirements of the employee protection regulations. The goals of the 
petition can be achieved through the development of regulatory guidance 
in conjunction with licensees and stakeholders and communicating this 
guidance to their managers and employees. Additional rulemaking would 
impose unnecessary regulatory burden on licensees and does not appear 
to be warranted for the adequate protection of the public health and 
safety and the common defense and security.
    For the reasons cited in this document, the NRC denies this 
petition.

    Dated at Rockville, Maryland, this 29th day of April, 2004.

    For the Nuclear Regulatory Commission.
William D. Travers,
Executive Director for Operations.
[FR Doc. 04-11296 Filed 5-18-04; 8:45 am]
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