[Federal Register Volume 69, Number 198 (Thursday, October 14, 2004)]
[Notices]
[Pages 61049-61058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23005]


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NUCLEAR REGULATORY COMMISSION


Proposed Generic Communication; Establishing and Maintaining a 
Safety Conscious Work Environment

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of opportunity for public comment.

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SUMMARY: The U.S. Nuclear Regulatory Commission is proposing to issue a 
regulatory issue summary (RIS) to provide the guidance for licensees on 
establishing and maintaining a Safety Conscious Work Environment 
(SCWE): that is, an environment in which employees are encouraged to 
raise safety concerns both to their own management and to the NRC 
without fear of retaliation. The agency's expectations regarding 
licensees establishing and maintaining a SCWE are described in the 1996 
NRC Policy Statement, ``Freedom of Employees in the Nuclear Industry to 
Raise Safety Concerns Without Fear of Retaliation.''
    In a March 26, 2003 staff requirements memorandum, the Commission 
directed the staff to develop further guidance, in consultation with 
stakeholders, that identifies ``best practices'' to encourage a SCWE. 
The guidance document is based on the existing guidance provided in the 
1996 Policy Statement, including the elements and attributes described 
therein of a healthy SCWE, and expands the guidance or adds new 
guidance where additional information would help describe practices to 
meet the intent of each SCWE attribute. In addition, the NRC staff held 
a public workshop to discuss the draft guidance document, on February 
19, 2004.
    On February 12, 2004, the NRC staff published an outline of this 
guidance document for public comment. The Commission received input 
from the public, in response to the Federal Register Notice, expressing 
general agreement concerning the content of the outline. However, some 
improvements were suggested, and the NRC staff has incorporated many of 
these suggestions into the guidance document developed from the 
outline. The NRC staff's response to each of the individual comments on 
the outline published on February 12, 2004, is included under 
``Supplemental Information--Staff Response to Comments,'' below.
    The February 12, 2004, Federal Register Notice emphasized that the 
NRC's 1996 Policy Statement was directed to all employers, including 
licensees and their contractors, subject to NRC authority, and their 
employees. Therefore, the guidance document also applies to this broad 
audience. The Federal Register Notice also clarified that the practices 
outlined in the guidance document may not be practical or necessary for 
all employers. Rather, the purpose of the guidance is to provide 
information on practices which have been effective at some larger 
licensees to maintain or improve the work environment and ensure its 
employees feel free to raise safety concerns. The scope of the guidance 
document remains broad and the NRC staff continues to believe that not 
all the practices outlined in the guidance document will be practical 
or effective for all licensees. The guidance, in the form of a RIS, is 
provided below for comment. It is also available on the NRC's Web site 
at: http://webwork:300/what-we-do/regulatory/allegations/scwe-
guide.html, well as in ADAMS at ML042800027.

DATES: Comments on the guidance document may be submitted on or before 
November 15, 2004. Since: (1) A detailed outline of the guidance 
document has previously been published for comment; (2) the NRC staff 
has evaluated and responded to these comments below; and (3) the 
Commission approved, in an August 30, 2004, Staff Requirements 
Memorandum, issuance of the guidance, the staff requests that any 
comments provided in response to this Federal Register Notice relate to 
the content of the document rather than the appropriateness of issuing 
the document. The staff plans to issue a final RIS containing the 
information in the document after reviewing and addressing any 
additional comments.

ADDRESSES: Submit written comments to: Michael T. Lesar, Chief, Rules 
and Directives Branch, Division of Administrative Services, Office of 
Administration, Mail Stop: T-6D59, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001. Hand deliver comments to: 11555 Rockville 
Pike, Rockville, Maryland, between 7:30 a.m. and 4:15 p.m., Federal 
workdays. Copies of comments received may be examined at the NRC Public 
Document Room, Room O-1F21, 11555 Rockville Pike, Rockville, Maryland. 
Publically available documents created or received at the NRC after 
November 1, 1999, are available electronically at the NRC's Electronic 
Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this 
site, the public can gain entry into the NRC's Agencywide Documents 
Access and Management System (ADAMS), which provides text and image 
files of NRC's public documents. If you do not have access to ADAMS or 
if there are problems in accessing the document located in ADAMS, 
contact the NRC PDR Reference staff at 1-800-397-4209, 301-415-4737, or 
email to [email protected].
    You may also e-mail comments to [email protected]. Fax comments to: 
Chief, Rules and Directive Branch, U.S. Nuclear Regulatory Commission 
at (301) 415-5144.

FOR FURTHER INFORMATION CONTACT: Lisamarie Jarriel, Agency Allegations 
Advisor, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, (301)-415-8529, email [email protected].

SUPPLEMENTARY INFORMATION:

Staff Response to Comments

    The NRC received 17 submittals providing comments suggesting 
changes or expressing concerns in response to the outline of the 
proposed industry guidance for establishing and maintaining a SCWE 
published in the Federal Register on February 12, 2004. Although most 
stakeholders, including representatives from both the industry and 
whistleblower advocates, were in general agreement concerning the 
content of the outline, some improvements were suggested and many have 
been incorporated into the draft document. The most significant 
comment, however, addressed whether the Agency should be producing such 
a document at all. Industry representatives commented that the 
industry, rather than the NRC, should develop the guidance. The 
following specific comments related to the topic of whether it is 
appropriate for the NRC to issue the guidance, and the NRC staff's

[[Page 61050]]

response to these comments, are as follows:
    Comment: The May 1996 Policy Statement clearly set the NRC staff's 
expectations for development of a SCWE and placed responsibility for 
establishing and maintaining a SCWE on the licensees. Therefore, it is 
not appropriate for the NRC staff to assume responsibility for 
development of a ``best practices'' document in the area of SCWE.
    Response: The staff notes that the Commission more recently (March 
26, 2003) issued a staff requirements memorandum that specifically 
requested that the staff develop more guidance regarding ``best 
practices'' to encourage a SCWE. The 1996 Policy Statement did in fact 
place the responsibility for establishing and maintaining a SCWE on 
licensees, and this responsibility remains with licensees. The guidance 
document does not transfer the responsibility for establishing and 
maintaining a SCWE from licensees to the NRC; rather, the guidance 
document provides some tactics for establishing and maintaining a SCWE 
which have been successful at some licensees and may be of use to other 
licensees in upholding the responsibilities described in the 1996 
Policy Statement.
    Comment: ``Best practices'' are not enforceable nor useful for NRC 
inspectors.
    Response: The NRC staff plans to issue the attached guidance in the 
form of a RIS, which is not a regulatory requirement but is an 
established method of providing guidance to the industry. The purpose 
of the document is to provide guidance to the industry, rather than to 
dictate regulatory requirements or to serve as a required standard for 
use during NRC inspections.
    Comment: Several comments were received that expressed a concern 
that any guidance developed by the NRC would be ``defacto'' regulatory 
requirements in this area, and that guidance from the NRC on ``best 
practices'' for establishing and maintaining a SCWE would create the 
impression that the guidance provided by the NRC would become the 
standard for an acceptable program. One commenter indicated that a 
requirement that surveys and interviews be performed on a regular basis 
would provide little benefit and would demand a substantial use of 
licensee resources.
    Response: As noted above, the NRC staff plans to issue the guidance 
document on establishing and maintaining SCWE as a RIS, which is not a 
regulatory requirement, but provides guidance to the industry on this 
important topic. While a perception may exist that such guidance 
documents are ``defacto'' requirements, the NRC staff clarified in the 
document that some of the practices outlined in the guidance may not be 
practicable or appropriate for every NRC licensee or contractor 
depending on the existing work environment and the size, complexity, or 
hazards of licensed activities. This statement should clarify that the 
information in the guidance document is not a requirement.
    Comment: The industry has developed and is using guidance from 
Nuclear Energy Institute (NEI) 97-05 \1\; therefore, additional 
guidance from the NRC is not necessary.
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    \1\ NEI 97-05, ``Nuclear Power Plant Personnel-Employee Concerns 
Program-Process Tools In A Safety Conscious Work Environment,'' Rev. 
1, January 2002.
---------------------------------------------------------------------------

    Response: The NRC staff has reviewed NEI 97-05, Revision 1 and a 
draft of Revision 2, and concurs that both revisions contain elements 
that are important to establishing and maintaining a SCWE. However, the 
staff noted some important distinctions in comparing the NEI document 
to the proposed NRC guidance on establishing and maintaining a SCWE, 
including: (1) A difference in the scope of the documents' emphasis on 
problem identification and resolution processes, in that the NEI 
document focuses on the effectiveness of the Employee Concerns Program 
while the NRC document more broadly addresses the effect of all problem 
identification and resolution processes on the SCWE; (2) additional 
details in the NRC document regarding several practices, such as 
management behaviors and oversight of contractor activities, which may 
impact the SCWE at licensed facilities; (3) additional details in the 
NRC document regarding the content of SCWE training; (4) inclusion of a 
discussion of several important and complex issues in the NRC document 
which are not contained in the NEI document, such as the effect of 
incentive programs and 360 degree appraisal programs on the SCWE; and 
(5) guidance in the NRC document with respect to processes to help 
detect and prevent discrimination, or mitigate perceptions of 
discrimination, which is not included in the NEI document.
    In addition to the above comments which generally related to the 
appropriateness of the NRC staff issuing a guidance document on 
establishing and maintaining a SCWE, the following comments were 
received:
    Comment: Several comments were received regarding a concern that 
issuance of a guidance document on best practices to establish and 
maintain a SCWE may give the impression that the practices in the 
document are all inclusive, when in fact additional practices may be 
effective or necessary at some sites, and some intangible issues, such 
as trust and management turnover, may significantly impact the SCWE. In 
addition, a concern was raised that issuing a best practices document 
for establishing and maintaining a SCWE may give the impression that 
the practices in the document have been objectively demonstrated to be 
effective when in fact they have not.
    Response: The NRC staff agrees that not all of the practices 
outlined in the guidance document may be practicable or appropriate for 
every licensee or contractor and that practices not included in the 
guidance may also be effective in establishing and maintaining a SCWE. 
The NRC staff also agrees that additional licensee efforts beyond the 
practices in the guidance may be necessary to establish or improve a 
SCWE. The staff has revised the title of the document from one that 
refers to ``best practices'' to further emphasize the unique nature of 
each licensee's work environment and has added language to emphasize 
that the practices in the document may not be practical or effective at 
all licensees, and that additional practices may be helpful or 
necessary to establish or maintain a SCWE at some facilities. In 
addition, several comments requested the addition of specific items to 
the outline. The specific comments were:
    Comment: More emphasis needs to be placed on the interpretation of 
data obtained and its impact on safe operations.
    Comment: More emphasis needs to be placed on the effectiveness of 
communications and teamwork as effective tools for the resolution of 
identified problems.
    Comment: The results of industry benchmarking (positive and 
negative attributes) should be included in the guidance.
    Comment: Industry Lessons learned should be included in the SCWE 
training.
    Response: Emphasis was added to the guidance document as requested 
in the first of these comments, but for the others the NRC staff 
determined that the guidance already adequately addressed these topics.
    Comment: Two comments were received which indicated that the NRC 
staff should develop a SCWE performance indicator or minimal acceptable 
standards for SCWE.

[[Page 61051]]

    Response: The NRC staff has considered developing an inspection 
process and assessment tools to evaluate the broader area of safety 
culture, which, as described in the guidance document, relates to a 
``safety-first focus''. SCWE is an attribute of safety culture. In an 
August 30, 2004, staff requirements memorandum, the Commission 
indicated that the staff should consider developing tools that allow 
inspectors to rely on more objective findings in the area of Safety 
Culture. The Commission specifically approved enhancing the reactor 
oversight process' treatment of cross-cutting issues to more fully 
address Safety Culture, and to allow for more agency action as the 
result of the identification of a cross-cutting issue regarding Safety 
Culture. Implementing this direction from the Commission may involve 
development of some form of a performance indicator for SCWE or Safety 
Culture. However, the Commission to date has not approved development 
of a regulation or ``minimal acceptable standards'' in the area of 
safety culture or SCWE.
    Comment: A question was posed in one comment regarding whether the 
guidance was intended to address only SCWE or the broader topic of 
Safety Culture. The commenter pointed out that the Commission did not 
specifically direct that the staff develop guidance about Safety 
Culture, but requested that the staff monitor developments abroad to 
ensure that the Commission remains informed about these efforts and 
their effectiveness.
    Response: The guidance document only addresses the topic of SCWE, 
rather than Safety Culture, and the NRC staff clarified this point in 
the draft guidance document. The staff notes that the commenter was 
correct in stating that the Commission did not direct that the staff 
develop guidance about Safety Culture, but requested that the staff 
monitor developments abroad to ensure that the Commission remains 
informed about these efforts and their effectiveness.
    Comment: The NRC has not previously issued ``best practices'' 
documents for other areas where it has a regulatory requirement or 
other interest.
    Response: While the NRC staff has not routinely issued ``best 
practices'' documents for other areas where its has a regulatory 
requirement or interest, the staff notes that the Commission 
specifically directed the staff in the March 26, 2003 staff 
requirements memorandum, to develop further guidance that would 
identify ``best practices'' to encourage a SCWE. While issuing 
documents which identify ``best practices'' is not routine for the NRC 
staff, it is also not prohibited by NRC policy, and many NRC guidance 
documents, while not titled ``best practices'', incorporate industry 
practices which have been effective.
    The following two comments were received regarding a concern that 
the NRC guidance related to a review of lessons learned/case studies 
may involve privacy and attorney-client privilege information:
    Comment: The Draft Best Practices document suggests that licensees 
conduct self assessments of SCWE by periodically evaluating and 
assessing information from areas/organizations that may contribute or 
negatively effect the SCWE, including from legal counsel. Any such 
assessment that seeks information contained in attorney's files could 
compromise the attorney-client privilege.
    Comment: The Draft Best Practices document suggests that licensees 
provide continuous training for employees, managers, and supervisors. 
Such training, according to the Draft Best Practices Document, should 
include ``lessons learned/case studies''. However, in the past the NRC 
has expressed concern that training involving cases studies might 
compromise the confidentiality of complainants who made allegations or 
engaged in litigation at that facility. The NRC should clarify its 
expectations with respect to the use of case studies.
    Response: The NRC staff acknowledges that information in licensees' 
attorney's files and some information in case studies could contain 
attorney-client privilege or privacy information and that review of 
such information by individuals completing self assessments or release 
of the information in a report of a self assessment would not be 
appropriate. Nonetheless, the NRC staff continues to believe that 
review of some legal documentation and case studies may be beneficial 
during self assessments of SCWE and training. As such, the NRC revised 
the sections of the guidance document which discuss review of legal 
documentation and inclusion of case studies in training to reflect that 
licensees should take into consideration privacy and attorney-client 
privilege considerations during such reviews.
    Comment: The Draft Best Practices document suggests that SCWE be 
reinforced by demonstrated management behavior that promotes employee 
confidence in raising and resolving concerns, including incentive 
programs. The use of incentive awards may be inappropriate in a SCWE 
toolbox and the use of this tool needs to be left to individual 
licensees.
    Response: As indicated in the guidance document on establishing and 
maintaining a SCWE, the NRC staff recognizes that some of the practices 
outlined in the guidance may not be practicable or appropriate for 
every NRC licensee. The information in the guidance is provided for 
licensees' consideration when developing or enhancing existing SCWE 
programs, or attempting to identify and correct potential problems with 
a program. As indicated in the guidance, the NRC staff believe that 
incentive programs may encourage reporting of safety concerns, and the 
guidance specifies that licensees should ensure that incentive programs 
do not inadvertently discourage raising safety concerns.
    Comment: The Draft Best Practices document suggests that the volume 
and trend of such statistics as NRC allegations, NRC retaliation 
allegations, anonymous concerns, and of internally raised concerns be 
used as performance indicators. Reliance upon such statistics may be 
misleading. As the NRC has previously recognized, allegers bring 
concerns to the NRC for various reasons, including self-serving reasons 
and reasons unrelated to the work environment at a nuclear plant.
    Response: While allegers raise concerns to the NRC for differing 
reasons, the NRC staff believes that, in general, the volume and trend 
of NRC allegations, anonymous concerns, and internally raised concerns 
can be used as performance indicators. While some individuals may bring 
concerns to the NRC and the licensee for reasons other than problems 
with the work environment, statistics such as the number and type of 
allegations received involve the total licensee alleger population and 
therefore may be a reflection of the status of the general work 
environment. Clarification was added to the guidance document to 
indicate that no single indicator is sufficient in identifying 
weaknesses in the SCWE, nor are there absolute measures that indicate 
an unhealthy environment. This clarification emphasizes that while such 
information may be indicative of the status of the work environment, 
further analysis is needed to identify the causes of changes in the 
number and types of allegations received.
    Comment: Certain language in the Draft Best Practices document 
encourages licensees to encroach on contractors' areas of 
responsibilities regarding SCWE. For example, it suggests that a 
licensee should oversee contractor SCWE-related matters,

[[Page 61052]]

including contractor SCWE-related programs, procedures, and training. 
In addition, the Draft Best Practices document suggests that licensee 
management should be involved in contractor proposed changes to 
employment conditions. Such actions could be an inappropriate 
encroachment on a contractor's ability to manage its own employees and 
could expose licensees to liability. NRC should clarify that 
contractors, and not licensees, are responsible for the content and 
effectiveness of the SCWE program within the contractor's organization.
    Response: The NRC staff disagrees that licensee oversight of a 
contractor's SCWE activities is an inappropriate encroachment on a 
contractor's ability to manage its own employees. Rather, the 
Commission's long-standing policy has been to hold licensees 
responsible for compliance with NRC requirements, regardless of whether 
the licensee uses a contractor to complete licensed activities. Since 
the actions of contractors can affect the SCWE at NRC licensed 
facilities, licensees are responsible for ensuring that their 
contractors maintain an environment in which contractor employees are 
free to raise concerns without fear of retaliation. While the NRC staff 
agrees that contractors are responsible for the content and the 
effectiveness of the SCWE within the contractor's organization, 
licensees are also responsible for overseeing contractor activities 
which may impact the SCWE at NRC licensed facilities.
    Comment: The Draft Best Practices document suggests that senior 
management review proposed employee actions (above oral reprimand) 
before they are taken to confirm that there are no elements of 
retaliation involved. Requiring senior management to review every 
disciplinary action would pose an unnecessary burden upon management.
    Response: As noted in the response above, the staff plans to issue 
the document on establishing and maintaining a SCWE as guidance for the 
industry rather than as a regulatory requirement. In addition, the NRC 
staff clarified in the document that some of the practices in the 
outline may not be practical or appropriate for every licensee, 
depending on the work environment and/or the size, complexity, and 
hazards of licensed activities. As such, the guidance does not require 
that senior management at every NRC licensee review every disciplinary 
action. Rather, the guidance suggests that review of disciplinary 
actions, such as those above an oral reprimand, may be beneficial at 
some licensed facilities. Review of disciplinary actions has benefited 
the work environment at some licensee facilities. The NRC staff also 
revised the language to the guidance document to provide disciplinary 
actions above an oral reprimand as one potential threshold to consider 
rather than as the suggested threshold. This language should further 
emphasize that licensees should customize SCWE practices to suit the 
needs of the facility.
    The comments are available in their entirety on the Office of 
Enforcement's Web page at: http://www.nrc.gov/what-we-do/regulatory/allegations/scwe-comments.html.

Supplementary Information--Draft NRC Regulatory Issue Summary: Guidance 
for Establishing and Maintaining a Safety Conscious Work Environment

Addressees

    All U.S. Nuclear Regulatory Commission (NRC) licensees, applicants 
for licenses, holders of certificates of compliance, and their 
contractors.

Intent

    Although not required by regulation, licensees and other employers 
subject to NRC authority are expected to establish and maintain a 
safety conscious work environment (SCWE, pronounced ``squee''). The NRC 
is issuing this regulatory issue summary (RIS) to supplement guidance 
for fulfilling this expectation. The guidance describes a number of 
practices that may facilitate the efforts of licensees and others in 
developing and maintaining a SCWE. The NRC recognizes that some of the 
practices described in this document may not be practical for every 
licensee, depending on the existing work environment and/or the size, 
complexity, and hazards of the licensed activities. Although this RIS 
requires no action or written response, all NRC addressees are 
encouraged to review and consider the contents of this RIS when 
evaluating whether a SCWE exists at their facility.

Background Information

    In April 2000, the Nuclear Regulatory Commission's Executive 
Director of Operations chartered the Discrimination Task Group (DTG) to 
evaluate issues associated with matters covered by the NRC's employee 
protection standards, including SCWE. The DTG recommendations were 
provided to the Commission in September 2002 in SECY-02-0166. In a 
March 26, 2003, staff requirements memorandum (SRM) for SECY-02-0166, 
the Commission directed the staff to take certain actions in the area 
of SCWE and safety culture, including providing the guidance herein. 
Regarding these two terms, SCWE and safety culture, there has been some 
confusion historically. Many use the terms interchangeably. They are, 
in fact, distinct, but related concepts. In the Commission's January 
24, 1989 ``Policy Statement on the Conduct of Nuclear Power 
Operations,'' safety culture is described as ``the necessary full 
attention to safety matters'' and ``the personal dedication and 
accountability of all individuals engaged in any activity which has a 
bearing on the safety of nuclear power plants.'' A strong safety 
culture is also often described as having a ``safety-first focus.'' 
Attributes include the principles of safety-over-production, procedural 
adherence, and conservative decisionmaking. The willingness of 
employees to identify safety concerns, i.e., SCWE, is also an important 
attribute of a strong safety culture.
    In July 1993, the agency reassessed the NRC's program for 
protecting allegers against retaliation. Retaliation is prohibited by 
NRC regulations in Parts 19, 30, 40, 50, 60, 61, 63, 70, 72, 76, and 
150. It was recommended that an agency policy be developed to emphasize 
that licensees and their contractors are responsible for achieving and 
maintaining a work environment which is conducive to the reporting of 
concerns without fear of retaliation. In May 1996, the NRC issued such 
a policy, ``Freedom of Employees in the Nuclear Industry To Raise 
Safety Concerns Without Fear of Retaliation (61 FR 24336 or 
www.nrc.gov/what-we-do/regulatory/allegations/scwe-frn-5-14-96.pdf). A 
SCWE is defined by the NRC as an environment in which ``employees feel 
free to raise safety concerns, both to their management and to the NRC, 
without fear of retaliation.'' The NRC also recognizes that, aside from 
fear of retaliation, other matters can affect an employee's willingness 
to identify safety concerns, such as the effectiveness of the 
licensee's processes for resolving concerns and senior management's 
ability to detect and prevent retaliatory actions. The NRC policy 
statement, therefore, addresses these attributes of a SCWE as well. The 
guidance provided by this policy, however, is very broad.
    In SRM-SECY-02-0166 the Commission directed the staff to develop 
further guidance, in consultation with stakeholders, that would 
identify ``best practices'' for encouraging a SCWE. The Commission 
indicated that the proposed guidance should emphasize training of 
managers on their obligations under the employee protection regulations 
and should make

[[Page 61053]]

recommendations about the content of the training in this important 
area. In the 1996 policy statement, the NRC acknowledged that although 
the statement and principles, described therein, apply to all licensees 
and other employers subject to NRC authority, some of the suggestions, 
programs, or steps that might be taken to improve the quality of the 
work environment (e.g., establishment of a method to raise concerns 
outside of the normal management structure such as an employee concerns 
program) may not be practical for every licensee or other employer, 
depending on factors such as the number of employees, complexity of 
operations, potential hazards, and the history of allegations made to 
the NRC. Similar to the suggestions and principles in the 1996 policy 
statement, the practices described in this document may not be 
practical for every licensee, depending on the existing work 
environment and/or the size and complexity and hazards of the licensed 
activities. For example, some of the practices in this guidance 
document may not be applicable for very small licensees or other 
affected employers that have only a few employees and a very simple 
management structure.

Summary of Issue

    An environment where employees feel free to raise safety concerns 
may contribute to a reduced risk associated with licensed activities 
and the use of radioactive materials. Attachment 1, ``Establishing & 
Maintaining a Safety Conscious Work Environment,'' is provided as 
guidance to licensees, applicants, and contractors on developing and 
maintaining a SCWE in response to the Commission's March 2003 
directive. Current industry guidance, Nuclear Energy Institute (NEI) 
97-05, ``Nuclear Power Plant Personnel--Employee Concerns Program--
Process Tools In a Safety Conscious Work Environment'' (www.nei.org/documents/Nuclear_Employee_Concerns_Tools.pdf) contains elements 
that are important to establishing and maintaining a SCWE as well, and 
complements the guidance provided by this RIS. However, NEI 97-05 
primarily focuses on establishing an effective employee concerns 
program (ECP), an alternative process for reporting safety concerns. 
Attachment 1 addresses SCWE more broadly as it applies to all problem 
identification and resolution processes.
    The NRC recognizes that some of the practices outlined in this 
guidance may not be practicable or appropriate for every NRC licensee 
or contractor, depending on the existing work environment, and/or the 
size or complexity, and the hazards of the licensed activities. In 
addition, practices not included in this guidance may be equally 
effective in establishing and maintaining a SCWE. The NRC staff 
emphasizes that licensees are responsible for establishing and 
maintaining a SCWE and that implementation of the guidance may not 
improve a SCWE without additional efforts by site management. However, 
the NRC believes that the elements in this guidance could be helpful to 
NRC licensees, applicants, and their contractors.
    The guidance in Attachment 1 is intended to supplement existing 
information that was communicated in the 1996 policy statement. The 
supplemental elements of a SCWE summarized in this attachment were 
developed utilizing information obtained from reactive inspections of 
problematic licensee programs, as well as reviews of successful 
progressive SCWE programs, and insights obtained during discussions 
with nuclear industry professionals in this field.
    The attached document provides guidance with respect to (1) 
encouraging employees to raise safety concerns, including incentive 
programs and communication tools, (2) SCWE training content and 
periodicity, (3) ECP and ombudsman programs, (4) tools to assess the 
SCWE, including performance indicators, behavioral observations, and 
surveys, (5) contractor awareness of SCWE principles and expectations, 
and (6) processes to help detect and prevent discrimination, or 
mitigate perceptions of discrimination.

Backfit Discussion

    This RIS requires no action or written response and is, therefore, 
not a backfit under 10 CFR 50.109, 70.76, 72.62, or 76.76. 
Consequently, the staff did not perform a backfit analysis.

Federal Register Notification

    A notice of opportunity for public comment on this RIS was 
published in the Federal Register (xx FR xxxxx) on {date{time} . 
Comments were received from {indicate the number of commentors by 
type{time} . The staff considered all comments that were received. The 
staff's evaluation of the comments is publicly available through the 
NRC's Agencywide Documents Access and Management System (ADAMS) under 
Accession No. ML042800027.

Small Business Regulatory Enforcement Fairness Act of 1996

    The NRC has determined that this action is not subject to the Small 
Business Regulatory Enforcement Fairness Act of 1996.

Paperwork Reduction Act Statement

    This RIS does not request information collections and, therefore, 
is not subject to the requirements of the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501 et seq.). 44 U.S.C. 3501 et seq.).

Attachment 1: Establishing & Maintaining a Safety Conscious Work 
Environment

Background

    In July 1993, the Nuclear Regulatory Commission's Executive 
Director for Operations directed that a team reassess the NRC's program 
for protecting allegers against retaliation. The team evaluated the 
process that was in place in 1993 and sought comments from other NRC 
offices, other Federal agencies, licensees, former allegers and the 
public. One recommendation from the 1993 effort was the development of 
an agency policy to emphasize that licensees and their contractors are 
expected to achieve and maintain a work environment which is conducive 
to the reporting of concerns without fear of retaliation.\2\
---------------------------------------------------------------------------

    \2\ ``Reassessment of the NRC's Program for Protecting Allegers 
Against Retaliation, NUREG 1499, January 1994.''
---------------------------------------------------------------------------

    On May 14, 1996, the NRC issued a policy statement \3\ to express 
the Commission's expectation that licensees and other employers subject 
to NRC authority will establish and maintain safety-conscious 
environments in which employees feel free to raise safety concerns, 
both to their management and to the NRC, without fear of retaliation. 
Licensees, contractors, subcontractors, and other employers in the 
nuclear industry are responsible for maintaining a safety conscious 
work environment (SCWE). This policy statement is applicable to the 
NRC-regulated activities of all NRC licensees, certificate holders, and 
their contractors and subcontractors.
---------------------------------------------------------------------------

    \3\ ``Policy Statement for Nuclear Employees Raising Safety 
Concerns Without Fear of Retaliation,'' Federal Register Notice May 
14, 1996, (Volume 61, Number 94).
---------------------------------------------------------------------------

    In April 2000, the Nuclear Regulatory Commission's Executive 
Director for Operations chartered the Discrimination Task Group (DTG) 
to evaluate issues associated with matters covered by the NRC's 
employee protection standards, including SCWE and SCWE training for 
managers--the subject of a petition for rulemaking, PRM-30-62, 
submitted on August 13, 1999. The DTG

[[Page 61054]]

recommendations \4\ were provided to the Commission in September 2002. 
In a March 26, 2003, staff requirements memorandum,\5\ the Commission 
directed the staff, in consultation with stakeholders, to develop 
further guidance that identifies best practices for encouraging a SCWE. 
On February 19, 2004, the staff met with stakeholders to discuss an 
expanded outline of best practices prepared by the staff based on the 
guidance contained in the 1996 policy statement. Comments on the 
outline were also solicited in a February 12, 2004, Federal Register 
notice. The comments that were received during the meeting and in 
response to the Federal Register notice were considered in preparing 
this guide.
---------------------------------------------------------------------------

    \4\ SECY-02-0166, ``Policy Options and Recommendations for 
Revising the NRC's Process for Handling Discrimination Issues,'' 
September 12, 2002.
    \5\ Staff Requirements--SECY-02-0166--``Policy Options and 
Recommendations for Revising The NRC's Process for Handling 
Discrimination Issues'', March 26, 2003.
---------------------------------------------------------------------------

Introduction

    The guidance in this document is intended to supplement existing 
information that was communicated in the 1996 policy statement. The 
supplemental elements of a SCWE summarized in this document were 
developed using information obtained from reactive inspections of 
problematic licensee programs, reviews of successful progressive SCWE 
programs, and insights obtained during discussions with nuclear 
industry professionals, including individuals who provide training to 
the industry on the subject and attorneys who have represented 
licensees and whistleblowers in proceedings.
    The NRC recognizes that some of the practices outlined in this 
guidance may not be practicable or appropriate for every NRC licensee 
or contractor, depending on the existing work environment and/or the 
size, complexity, and hazards of the licensed activities. In addition, 
practices not included in this guidance may be effective in 
establishing and maintaining a SCWE. The NRC staff emphasizes that 
licensees are responsible for establishing and maintaining a SCWE and 
that implementation of this guidance may not improve a SCWE without 
additional efforts by site management. However, the NRC believes that 
the elements in this guidance could be helpful to NRC licensees and 
their contractors when developing or enhancing existing SCWE programs, 
or when attempting to identify and correct potential problems in a 
program.

Elements of a Safety Conscious Work Environment

Effective Processes for Problem Identification and Resolution

    Effective processes for problem identification and resolution are 
essential to ensuring the safe use of nuclear materials and operation 
of facilities. The following guidance discusses attributes of the work 
environment that encourage individuals to look for and articulate 
safety concerns and effectively and efficiently address and resolve the 
concerns. The approach taken to develop the SCWE and to implement the 
appropriate processes described below will depend on several factors, 
including the size of the licensee, applicant, or contractor.
A. Employees Are Encouraged To Raise Safety Concerns
    SCWE Policy. A SCWE policy statement which (a) is applicable to 
employees and contractors, (b) asserts that it is everyone's 
responsibility to promptly raise concerns, and (c) makes clear that 
retaliation for doing so will not be tolerated helps establish a SCWE 
and helps communicate senior management's expectations for maintaining 
it. In addition, the policy may include:
     A statement that, to the extent appropriate, employees are 
allowed and encouraged to use work hours to report concerns;
     Sanctions for retaliation by supervisors, managers, or 
peers;
     Expectations for management behavior that fosters employee 
confidence in raising concerns;
     Information on the various avenues available for raising 
concerns;
     The rights of employees to raise concerns externally; and
     A commitment to provide SCWE training.
    SCWE Training. SCWE training for managers, supervisors, and 
employees helps reinforce the principles outlined in the licensee's 
SCWE policy. The training given to managers and employees should 
include applicable laws, regulations and policies underlying SCWE 
expectations.
     Managers and employees should know what ``protected 
activities'' are, besides raising safety concerns.
    The term ``protected activity'' has been broadly interpreted by the 
Department of Labor and the U.S. Courts. A protected activity is 
defined by NRC regulation as including, but not limited to:
    [cir] Providing the Commission or employer information about 
alleged or possible violations of the Atomic Energy Act, the Energy 
Reorganization Act, or requirements imposed under either statute;
    [cir] Refusing to engage in any practice made unlawful under either 
statute or the requirements, if the employee has identified the alleged 
illegality to the employer;
    [cir] Requesting the Commission to institute action against the 
employer for the administration or enforcement of these requirements;
    [cir] Testifying in any Commission proceeding, or before Congress, 
or at any Federal or State proceeding regarding a provision of either 
statute;
    [cir] Assisting or participating in, or being about to assist or 
participate in, these activities.
     Managers and employees should also know what an ``adverse 
action'' is. An ``adverse action'' is generally defined as an adverse 
change of the terms, conditions, or benefits of the employee's work. 
Adverse employment actions may include changes in employment status, 
regardless of whether the individual's pay is affected, and threats to 
employment.
     They also need to know the meaning of ``retaliation'' 
under the NRC's regulations.
    An adverse action is deemed retaliatory if it is taken because the 
individual was engaged in a protected activity.
    The training given should also include the consequences for 
deviations from applicable laws, regulations, and policies underlying 
SCWE expectations.
    The training should identify appropriate gateways for employees and 
contractors to identify concerns (manager, quality assurance programs, 
corrective action programs, appeal processes, alternative processes for 
raising concerns such as a licensee Employee Concerns Programs or an 
ombudsman program, NRC, and DOL). The training should include a 
description of how each program works, and the role of the manager in 
each program.
    The training should include expectations for management behavior. 
For example, managers should be expected to make themselves available 
to the workforce by various means, including an ``open-door'' policy in 
the office and when managers are in the field. Managers also need to be 
sensitive to employees' potential reluctance to raise concerns and may 
need to protect employees' identity or the identity of others involved. 
Basic listening skills, effective ways to seek input, and

[[Page 61055]]

expressions of appreciation to those who raise concerns are other 
behaviors to be encouraged in managers. Managers should be 
knowledgeable of and periodically use various media instruments to 
communicate their SCWE principles. Management should establish 
timeliness goals for responding to concerns, commensurate with safety 
significance, and provide periodic updates to the individuals who 
identified the concerns. Managers should evaluate the effectiveness of 
their responses to determine whether the responses adequately addressed 
employees' concerns. Managers should ensure that operational or 
maintenance goals do not make supervisors less receptive to safety 
concerns, particularly concerns which may result in significant costs 
or schedule delays. Finally, training for managers should include 
information to help them identify and address signs of a ``chilled 
environment,'' that is, an environment in which employees are afraid to 
raise safety concerns for fear of retaliation.
    Managers who model positive traits of availability, receptiveness, 
sensitivity, encouraging communications, timeliness, and responsiveness 
associated with a SCWE will promote employee confidence in identifying 
and resolving concerns. Managers who have exhibited success in this 
area should consider training or mentoring other mangers in an effort 
to duplicate the success.
    Similarly, expectations for employees' behavior should also be 
included in the employees' training. Consider emphasizing the following 
employee behaviors during training:
     Individual responsibility for reporting concerns;
     Clear communication of the concern and confirmation of 
understanding with the person receiving the concern;
     Willingness to suggest resolutions to concerns and 
participate to in their resolution;
     Followup to ensure the concern is adequately addressed;
     Need for every employee to demonstrate respect for others 
who identify concerns.
    Initial training of recently hired employees or recently promoted 
managers should be conducted as soon as practicable and refresher 
training for existing staff should be conducted annually or more 
frequently, as determined by the needs and complexity of the 
organization. Annual refresher training for employees and managers 
should review key points from initial training and include lessons 
learned, as appropriate, from successes and/or problem areas.
    SCWE Incentive Programs. An incentive program can be developed 
which provides recognition and rewards for individual and team efforts 
in identifying and/or resolving safety issues. In addition, 
implementation of site-wide bonus and incentive programs which reflect 
safety objectives over production goals may also encourage reporting of 
safety concerns. However, some care should be taken to ensure that 
incentive programs do not inadvertently discourage reporting concerns 
(e.g., some employees may not want recognition).
    Employee errors can have a detrimental effect on safety and efforts 
should be made to reduce the frequency and significance of errors. An 
environment that is conducive to the self-reporting of errors will 
allow errors to be identified more quickly and can reduce the potential 
significance of some errors. While it is important to hold employees 
accountable for their errors, licensee personnel management practices, 
to the extent practicable, should consider that actions against 
personnel who self-report errors can, in some circumstances, discourage 
employees from raising concerns, near misses, etc. Consider using self-
identification and prompt, effective corrective actions as mitigating 
circumstances for consideration when addressing personnel matters 
involving self-identified errors.
B. Management Is Promptly Notified of Concerns
    Aside from the practices discussed above concerning policies, 
training, and incentive programs designed to create a work environment 
where employees feel free to raise safety concerns without fear of 
retaliation, there are other behaviors and processes which may help 
employees promptly identify and notify management of concerns. 
Employees and management that demonstrate an open and questioning 
attitude by asking ``why'' and ``what if'' type questions help to 
ensure concerns are promptly identified. Processes for identifying 
concerns should be accessible and user-friendly. A corrective action 
program which is flexible in its use of paper forms and/or terminals, 
conveniently placed throughout the facility, also helps ensure prompt 
notification of safety concerns. An accessible and approachable 
management team further motivates employees to report concerns, 
including communications that ensure an understanding of the concerns 
prior to their proposed resolution and inspection. As appropriate, 
employees should be allowed and encouraged to spend needed work hours 
to report concerns.
C. Concerns Are Promptly Prioritized and Reviewed
    Safety should be a primary factor in the concern prioritization 
scheme and in determining the breadth and depth of the evaluation. 
Effective communication plans should ensure the sharing of information 
between affected departments so that the potential impact of the 
identified concerns on safety can be appropriately assessed. In 
addition, management and employees should develop expectations 
concerning timeliness to complete the evaluation and resolution of 
issues. The process for screening issues should include a review for 
operability and reportability as applicable. For significant conditions 
adverse to quality, the evaluation should be sufficient to identify the 
root and contributing causes of the issue. In addition, the root cause 
analysis should address both the extent of the condition and the cause 
of the issue.
D. Concerns Are Appropriately Resolved
    Timeliness of the corrective actions should be commensurate with 
the safety significance of the issue. Processes should be in place to 
ensure that appropriate actions are taken in response to all conditions 
adverse to quality. For significant conditions adverse to quality, 
corrective actions should be taken to address the root causes, 
contributing causes, and the extent of the condition caused by the 
identified concern.
E. Timely Feedback Is Provided to the Concerned Individual
    Timely feedback should be provided at appropriate points during the 
concern resolution process. The individual receiving the information 
may need to discuss the concern with the employee raising the concern 
in order to understand the issue and its safety significance. 
Additional feedback may be necessary during the evaluation when it is 
apparent that resolution may take longer than anticipated. When the 
evaluation is complete, it is important to followup with the concerned 
employee to share proposed actions to address the issue, if 
appropriate. The most effective feedback process is one which is 
sufficiently flexible to permit a concerned employee who wants 
anonymity to obtain feedback.

[[Page 61056]]

F. Appeal Process for Concerns
    An appeal process to ensure that issues were thoroughly addressed 
(e.g., differing professional opinion or alternative dispute resolution 
processes) can provide added assurance that concerns are appropriately 
resolved.
G. Self-Assessments of Problem Identification & Resolution (PI&R) 
Processes
    It is a good practice to periodically evaluate the adequacy and 
timeliness of responses, as well as the satisfaction of the concerned 
individual with the response and process. In addition, a self-
assessment should address whether employees feel free to raise issues 
using the various processes employed by the licensee and whether these 
processes are viewed as effective, and why or why not. An assessment 
should include an appraisal of the effectiveness of the root cause 
analyses for significant issues and the effectiveness of associated 
corrective actions. Management should have a plan to promptly review 
the findings of such self-assessments and implement appropriate 
corrective actions.
H. An Alternative Process to Line Management
    To address the situation where an individual wishes to raise a 
concern to someone other than their management or through the 
corrective action program, an alternative process, such as an employee 
concerns program, can be useful. Given the nature of many of the issues 
one may wish to raise outside of line management, such a process should 
ensure identity protection and/or anonymity to the extent appropriate. 
Such an alternative process should be accessible in multiple ways 
(e.g., walk-ins, hot lines, drop boxes) to the extent practical, given 
the size of the organization. In considering the physical location of 
the personnel operating the alternative process, one should consider 
both their accessibility to the workforce and their visibility. An 
overly visible office may not allow discreet visits. Personnel training 
programs, advertising posters, and facility news articles help provide 
notification of the process. Like concerns brought to the corrective 
action program, concerns brought to the alternative program must 
receive appropriate operability and reportability reviews and be 
properly prioritized using safety as a primary factor for determining 
the breadth, depth, and timeliness of the evaluation. While independent 
from line organizations involved in the concerns, the process is most 
effective if the personnel doing the evaluations are directly 
accountable to senior management. Senior management provides 
appropriate support and resources, including staffing and access to 
necessary documents and materials to conduct inspections. The process 
should provide timely feedback on the status and resolution of concerns 
and status reports to senior management with analyses of program data 
and observations.

Tools To Assess the SCWE

    Information gathered from the following tools should be considered 
for program enhancements, training enhancements, coaching and 
counseling opportunities, organizational changes, and survey topic 
suggestions. As with the processes for problem identification and 
resolution, discussed above, the choice of tools and their usefulness 
will depend on several factors, including the size of the licensee, 
applicant, or contractor, and the complexity and hazards of the 
licensed activities.
A. Lessons Learned Evaluations
    It may be useful to periodically evaluate information from 
pertinent organizations and processes which may contribute to or 
negatively affect the SCWE to identify enhancements or adjustments to 
the organizations and processes. The organizations and processes with 
pertinent information may include the primary process for raising 
concerns (e.g., correction action program), an alternative process for 
raising concerns (e.g., employee concerns program, or ombudsman), human 
resources (regarding work environment concerns, etc.), legal counsel 
(regarding Department of Labor files, etc.), and/or regulatory affairs 
(regarding NRC findings or observations). Discussions about specific 
documentation or events should take into consideration privacy and 
attorney-client restrictions. Lessons learned from external 
organizations can also be useful
B. Benchmarking
    Participation in applicable industry forums or peer-group 
assessments of other SCWE programs where ideas and practices are 
exchanged and various SCWE elements compared can also provide valuable 
insights.
C. Performance Indicators
    Parameters that help indicate the effectiveness of the SCWE 
training and problem identification and resolution processes should be 
identified and monitored. For example, the number and trend of NRC 
allegations \6\ (available only for large licensees) compared to the 
number and trend of internally raised concerns may be an indication of 
employee willingness to raise concerns internally. Similarly, the 
percent of anonymous concerns raised may indicate employee willingness 
to raise concerns without fear of retaliation.
---------------------------------------------------------------------------

    \6\ Although the NRC makes statistical information regarding 
allegations publicly available and available to some licensees, this 
information does not include information that could be used to 
identify a concerned individual who has raised their concern to NRC.
---------------------------------------------------------------------------

    Licensee effectiveness in preventing retaliation claims may be 
indicated by the number and trend of NRC retaliation allegations 
(available only for large licensees) compared to the number and trend 
of internally raised retaliation concerns.
    The percent of employees with a questioning attitude and a 
willingness and ability to raise safety concerns may be indicated by 
comparing the number of risk-significant concerns that are self-
revealed, self-identified, or externally identified by INPO, NRC, OSHA, 
etc., to the total number of concerns.
    Finally, the backlog and age of concerns may indicate the 
effectiveness of processes for resolving concerns.
    No single indicator is sufficient in itself to identify weaknesses 
in the SCWE, nor are there absolute measurements that indicate an 
unhealthy environment. Nonetheless, monitoring the trends in various 
characteristics of the SCWE with performance indicators like those 
mentioned above may provide insights into the strengths and weaknesses 
of the SCWE at a site.
D. Survey and Interview Tools
    Survey instruments and interview questionnaires implemented by 
organizations independent of the groups being surveyed or interviewed 
can be useful tools and complement other tools used to assess the SCWE.
    Pre-survey or pre-interview communications are a very important 
part of such tools. Communications with the workforce prior to the 
implementation of the survey or interview should include a request for 
participation, a statement of the need for input, a promise to protect 
participants' identity, the intended use of the gathered information, 
and a promise to share the results with the workforce.
    Regular employee business hours should be made available to conduct 
surveys or interviews.
    The scope of SCWE surveys should include the following:

[[Page 61057]]

     Awareness of company policies and practices with regard to 
raising safety concerns and avenues available for raising concerns;
     Management behaviors encouraging the workforce to raise 
safety concerns;
     Workers' willingness to raise safety concerns;
     Effectiveness of the processes available (normal and 
alternative) for raising concerns;
     Management's ability to detect and prevent retaliation for 
raising safety concerns.
    Space should be provided on surveys for written comments.
    Survey or interview follow-up action plans should be developed to 
address findings that are specific to work groups or generic to the 
facility. In addition, management should commit to share the results 
with the workforce and share action plans to address findings. The 
results of surveys or interviews may indicate employee beliefs, 
attitudes, and satisfaction with key SCWE attributes, as well as ways 
to improve the SCWE.
E. Direct Observations
    Direct observations of individuals' behavior provides information 
regarding the effectiveness of any SCWE training. Management behaviors 
observed may indicate whether a supervisor is receptive to concerns and 
supports and rewards employees for raising concerns. Direct observation 
of employees in the work environment can provide valuable insights into 
the employees' questioning attitude and willingness to challenge 
perceived unsafe behavior.
F. Exit Interviews and Surveys
    Exit interviews and surveys, conducted to facilitate the 
identification of safety issues from exiting employees, provide an 
opportunity to capture concerns an individual may not have been 
comfortable raising while working at the facility. These activities 
should include follow-up mechanisms for exiting employees who want to 
be informed of the resolution of their concerns. Employees' identities 
should be protected.
G. 360-Degree Appraisals
    Consideration should be given to the implementation of a ``360-
degree'' appraisal program, where employees are asked to provide 
feedback on manager SCWE behavior.

Improving Licensee Contractor Awareness of SCWE Principles

    The Commission's longstanding policy is to hold its licensees 
responsible for compliance with NRC requirements, even if licensees use 
contractors for products or services related to NRC-regulated 
activities. Thus, licensees are responsible for ensuring that their 
contractors maintain an environment in which contractor employees are 
free to raise concerns without fear of retaliation. In considering 
whether enforcement action should be taken against licensees for the 
actions of their contractor, the NRC considers, among other things, the 
extent and effectiveness of the licensee's involvement with and 
oversight of the contractor's environment for raising concerns.
A. Communicating Licensee SCWE Expectations to Contractors
    Licensee SCWE expectations of contractor responsibilities as they 
relate to creating and maintaining a SCWE should be communicated to 
contractors providing components, equipment, materials, or other goods 
and services related to NRC-regulated activities. It should be the 
licensee's expectation that the contractors and their subcontractors 
are aware of applicable regulations. Furthermore, a licensee may want 
to communicate to its contractors and subcontractors that the licensee 
expects them to demonstrate that either an effective program exists 
that prohibits discrimination against contractor employees for engaging 
in protected activity and fosters a SCWE, or they adopt and comply with 
the licensee's SCWE program for their employees.
B. Licensee Oversight of Contractor SCWE Activities
    Aside from communicating its SCWE-related expectations to their 
contractors, licensees may wish to oversee contractor SCWE-related 
activities. Such oversight may include:
     Reviewing contractor programs and processes to prohibit 
discrimination and foster a SCWE;
     Assessing the contractor management's commitment to SCWE 
principles through document review or behavioral observations;
     Reviewing contractor training, both for content and for 
effectiveness;
     Monitoring the contractor's actions to address concerns, 
such as reviewing contractor investigations to determine the need to 
conduct independent licensee investigations;
     Evaluating actions, if any, the contractor takes to 
mitigate the potential impact of employment decisions or organizational 
changes on the SCWE.
C. Licensee Management Involvement in Contractor Cases of Alleged 
Discrimination
    Given that the SCWE is most challenged when changes are made to the 
employment conditions of the workforce, it can be very beneficial to 
licensees to monitor such changes when proposed or executed by the 
contractor. Licensee oversight in this area might include evaluating 
contractor processes for making changes to employment conditions, such 
as disciplinary policies or reduction-in-force plans, to ensure the 
processes are well-defined, defensible, and communicated to the 
workforce in advance of their implementation.
    Furthermore, licensee management should evaluate contractor-
proposed changes to employment conditions to ensure the proposed 
changes follow defined processes and are nonretaliatory. The licensee 
can also assess whether the contractor has taken into consideration the 
potential effect that their actions might have on the SCWE, and, if 
appropriate, actions to mitigate the impact.
    Finally, contractor changes to employment conditions that are 
alleged to be or are likely to be perceived as retaliatory should be 
reviewed to ensure the changes are not retaliatory or would otherwise 
effect the SCWE adversely.
D. Contractor SCWE Training
    Contractor SCWE training can be provided by the contractor or 
licensee. As with the training given to licensee employees, the 
contractor training should cover the laws, regulations, and policies 
underlying the licensee's SCWE expectations; the licensee's governing 
SCWE policy; the avenues available to contractor staff to raise 
concerns; and the licensee's expectations for contractor management and 
employee behavior regarding raising safety concerns. The contractor 
training should also include an explanation of licensee contractual 
rights to oversee the contractor's SCWE. Training should be conducted 
during business hours.

Involvement of Senior Management in Employment Actions

    Management should ensure that programs and processes involving 
changes to employment conditions, such as disciplinary policies or 
reductions-in-force plans, are well-defined, defensible, and 
communicated to the workforce prior to their implementation. An 
effective way for senior licensee management to prevent retaliatory 
actions by their supervisory staff is to review proposed employment

[[Page 61058]]

actions, such as those above an oral reprimand, before the actions are 
taken to determine whether any of the factors of retaliation are 
present.
    The factors of retaliation are as follows:
     Protected activity--Has the individual against whom the 
action is being taken engaged in a protected activity?
     Adverse action--Is an adverse employment action being 
proposed?
     Licensee or contractor knowledge of protected activity--
Such knowledge can be attributed to other than the individual's direct 
supervisor.
     Relationship between the adverse action and the protected 
activity--Is there evidence that the adverse action is being proposed 
because of the protected activity?
    Senior management review of such employment actions should ensure 
that programs or processes are being followed to ensure actions are 
well-founded and nonretaliatory. In addition, the review should ensure 
that the proposed action comports with normal practice within the 
limits allowed by the defined process and is consistent with actions 
taken previously. The review should assess whether the supervisor 
requesting the action exhibits any sign of unnecessary urgency. The 
employee's prior performance assessments and the proposed action should 
be consistent or inconsistencies should be justified and documented.
    Finally, an assessment should be done to determine what, if any, 
effect the employment action may have on the SCWE. If management 
determines that the action, despite its legitimacy, could be perceived 
as retaliatory by the workforce, mitigating actions should be 
considered to minimize potential chilling effects on raising safety 
issues.
    Such mitigating actions may include (1) the use of holding periods 
during which the proposed employment action is held in abeyance while 
further evaluations are completed; (2) communicating with the workforce 
about the action being taken, with appropriate consideration of privacy 
rights; (3) reiterating the SCWE policy; and (4) explaining the action 
to the affected employee(s) and clearly articulating the nonretaliatory 
basis for the action. After an employment action is taken, management 
should initiate a review of the facts and, if warranted, reconsider the 
action that was taken. If retaliation is alleged, the licensee should 
assure that the appropriate level of senior management is involved in 
efforts to minimize a potential chilling effect that the employment 
action may have on raising safety issues.

Definitions

    Adverse action--An action initiated by the employer that 
detrimentally affects the employee's terms, conditions, or privileges 
of employment. Such actions include but are not limited to termination, 
demotion, denial of a promotion, lower performance appraisal, transfer 
to a less desirable job, and denial of access.
    Alternative dispute resolution (ADR)--Refers to a number of 
processes, such as mediation and facilitated dialogues, that can be 
used to assist parties in resolving disputes.
    Corrective action program (CAP)--A formal system for issues that 
may require remedial action that are raised by employees that tracks 
issues from their identification through evaluation and resolution. The 
issues are usually prioritized according to the relative safety 
significance.
    Differing professional opinion (DPO)--A formal alternative process 
which provides an avenue of appeal for an employee to disagree with a 
position taken by management.
    Employee concerns program (ECP)--An alternative process to line 
management and the CAP for employees to seek an impartial review of 
safety concerns. Many ECPs handle a variety of concerns and may act as 
brokers seeking resolution on behalf of the employees.
    Hostile work environment--An intentional discriminatory work 
environment that is either pervasive and regular or acute but severe 
and detrimentally affects the employee because of protected activity.
    Memorandum of understanding (MOU)--A written agreement which 
describes how organizations, offices, or agencies will cooperate on 
matters of mutual interest and responsibility.
    Performance indicators (PI)--A series of predetermined measured 
items which usually provide managers with insight into what may be 
occurring within an organization and give an early sign of problems 
that, if acted upon, could relieve stress within an organization.
    Protected activity--Includes initiating or testifying in an NRC or 
DOL proceeding regarding issues under the NRC's jurisdiction, 
documenting nuclear safety concerns, the internal or external 
expression of nuclear safety concerns, and refusing to engage in any 
practice made illegal under the Atomic Energy Act or the Energy 
Reorganization Act if the employee has identified the alleged 
illegality to the employer.
    Safety conscious work environment (SCWE)--An environment in which 
employees are encouraged to raise safety concerns both to their own 
management and to the NRC without fear of retaliation.

    Dated at Rockville, Maryland, this 7th day of October, 2004.

    For the Nuclear Regulatory Commission.
Francis M. Costello,
Acting Chief, Operating Reactor Improvements, Division of Regulatory 
Improvement Programs, Office of Nuclear Reactor Regulation.
[FR Doc. 04-23005 Filed 10-13-04; 8:45 am]
BILLING CODE 7590-01-P