2011-26752. Implementation of the Alternative Dispute Resolution Program

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Public meeting; request for comments.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) plans to conduct a public meeting on November 8, 2011, in Rockville, Maryland, to solicit feedback from its stakeholders on its Alternative Dispute Resolution (ADR) Program in the NRC's Office of Enforcement (OE). OE oversees, manages, participates, and develops guidance for this program. The meeting will be composed of panel discussions addressing implementation of the ADR Program and whether changes could be made to the program to make it more effective, transparent, and efficient. Panel discussions will be followed by opportunities for other meeting participants to ask questions and/or provide comments.

DATES:

Submit comments by January 17, 2012. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.

ADDRESSES:

Please include Docket ID NRC-2011-0208 in the subject line of your comments. For additional instructions on submitting comments and instructions on accessing documents related to this action, see “Submitting Comments and Accessing Information” in the SUPPLEMENTARY INFORMATION section of this document. You may submit comments on the issues and questions presented in this document and discussed at the meeting by any one of the following methods:

• Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for documents filed under Docket ID NRC-2011-0208. Address questions about NRC dockets to Carol Gallagher, telephone: [phone]; e-mail: [e-mail].
• Mail comments to: Cindy Bladey, Chief, Rules, Announcements, and Directives Branch (RADB), Office of Administration, Mail Stop: TWB-05-B01M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
• Fax comments to: RADB at 301-492-3446.

FOR FURTHER INFORMATION CONTACT:

Shahram Ghasemian, telephone: [phone] or by e-mail to [e-mail]; or Maria Schwartz, telephone: [phone] or by e-mail to [e-mail]. Both of these individuals can also be contacted by mail at the U.S. Nuclear Regulatory Commission, Office of Enforcement, Concerns Resolution Branch, Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION:

I. Background

On September 6, 2011 (76 FR 55136), the NRC announced its intention to hold a public meeting addressing implementation of its ADR Program in the Federal Register (ADAMS Accession No. ML11237A115), and solicited nominations of individuals to participate on a panel to discuss various aspects of the program's effectiveness, transparency, and efficiency, as well as several specific questions that the NRC is including in this Federal Register notice (FRN) for public comment.

The NRC's ADR Program is comprised of two entirely different sub-programs; the first is pre-investigation (commonly referred to as “Early ADR”) and the second is post-investigation. The early ADR Program provides an individual and his or her employer (or former employer) the opportunity to resolve the individual's allegation of discrimination through mediation rather than to fully litigate the discrimination allegation or have the NRC initiate an investigation into the allegation of discrimination. Mediation is an informal and voluntary process between an individual and his or her employer (or former employer) in which a trained mediator works with the parties to help them settle their dispute. Early resolution of discrimination allegations tends to preserve relationships and generally promotes a safety conscious work environment by facilitating timely and amicable resolution of discrimination concerns without resorting to prolonged litigation and unnecessary expenses.

The second sub-program (commonly referred to as “Post-Investigation ADR”) refers to the use of mediation after the completion of an investigation by the NRC's Office of Investigations (OI) and the staff's conclusion that the pursuit of an enforcement action appears warranted. It is offered at three stages after the completion of an investigation by OI: (1) Before an initial enforcement action; (2) after the initial enforcement action is taken, typically upon issuance of a notice of violation; and (3) when a civil penalty is imposed but before a hearing request. Post-investigation ADR may produce more timely and effective outcomes for the NRC and an entity (e.g., an NRC licensee, certificate holder, or contractor of an NRC licensee or certificate holder) or an individual who is subject to an enforcement action.

Participation in either early or post-investigation ADR is entirely voluntary. The parties involved may withdraw from the mediation process at any time. If mediation is unsuccessful in the case of early ADR, the OI may initiate an investigation into the allegation of discrimination; while, in the case of post-investigation ADR, the NRC may proceed with an enforcement action.

II. Purpose of the Public Meeting

The purpose of this meeting is to provide a forum in which stakeholders, including the NRC, can discuss the NRC's current ADR Program (early ADR and post-investigation ADR). The ADR Program has become an important aspect of the NRC's enforcement program. Because ADR is regularly used in the NRC's enforcement program, the NRC believes it should solicit stakeholder input to ensure that the program provides timely and economical resolution of issues while achieving more effective outcomes and improved relations. Questions about participation in the public meeting should be directed to one of the contacts at the address listed in the FOR FURTHER INFORMATION CONTACT section of this document.

III. Topics for Discussion

This meeting will allow stakeholders to provide feedback regarding their perceptions of the ADR Program's effectiveness, transparency, and timeliness. To ensure that this process is open, effective, and collaborative, the format of the meeting will consist of panel discussions among stakeholders to include: a representative from the NRC, representatives from NRC-regulated nuclear industries, public interest groups, and members of the public. The panel discussions will be followed by interactive discussions with other meeting attendees.

Specific questions that the NRC will consider during the meeting, and on which the NRC is soliciting public comments are:

Questions Related to Pre-investigation ADR (Includes “Early ADR” and “Licensee-Sponsored ADR”)

1. Do you think the NRC's Pre-investigation Program supports the NRC's mission to protect the public health and safety and the environment?

2. Pre-investigation ADR is limited to the resolution of allegations of discrimination and expressly excludes the resolution of technical issues prior to the initiation of an NRC investigation. Are there other types of issues that may be resolved through the program?

3. “Abuse of the program” is the exception to entry into the program. “Abuse of the program” is currently not defined. Should this term be defined? If so, how should it be defined? Provide some examples of an “abuse of the program” by an alleger or a company?

4. In addition to “abuse of the program,” should there be other restrictions to entry into the program?

5. Pre-investigation ADR is offered in lieu of an OI investigation. If the parties reach a settlement agreement that does not include terms which prohibit or discourage the alleger from engaging in a protected activity, the NRC does not initiate an investigation and closes the allegation. Should this aspect of the program be changed? Why or why not?

6. Statistical trending data regarding the usage of the program and other information regarding the process is currently published on the NRC's Enforcement ADR Web page at http://www.nrc.gov/​about-nrc/​regulatory/​enforcement/​adr.html.

a. Are there other means to enhance the transparency of the program without infringing on the confidentiality of the ADR process or the allegation program?

b. What are some factors to be considered when measuring the transparency of the program?

7. Do you view the pre-investigation ADR as timely?

8. Should stricter timeliness requirements be imposed on the parties in early ADR?

9. What factors should be considered when measuring the effectiveness of the early ADR program?

10. Is the use of a third party administrator beneficial to the program?

11. Are mediators perceived as effective and unbiased in supporting the parties' resolution of their differences?

12. Are the mediators familiar with the NRC regulatory environment?

13. What are some areas that present opportunities for improvement to the early ADR program?

14. What are some areas of the program that you believe are effective?

Issues Related to Post-investigation ADR

1. Does the program support the NRC's mission and achieve its enforcement policy goals? In that regard, do post-investigation ADR outcomes generally convey a strong regulatory message?

2. Post-investigation ADR is limited to the resolution of wrongdoing cases and related technical issues after the conclusion of an NRC investigation. Should the scope of post-investigation ADR be expanded (e.g. non-wrongdoing cases involving the imposition of a civil penalty)?

3. Post-investigation ADR outcomes, statistical trending data regarding the usage of the program and other information regarding the process and the program generally, are currently published on the NRC's Enforcement ADR Web page (http://www.nrc.gov/​about-nrc/​regulatory/​enforcement/​adr.html). Moreover, a press release is typically issued following the issuance of a confirmatory order publicizing the mediation and its outcome. Are there other means to enhance the transparency of the program (including outcomes, policies and procedures) without infringing on the confidentiality considerations of the ADR process?

4. What are some factors to be considered when measuring the transparency of the program?

5. Are there other means to enhance the communication of ADR outcomes, policies and procedures?

6. Do you view the post-investigation ADR process as timely?

7. Could the process be modified to make it more timely? How?

8. What factors should be considered when measuring the effectiveness of the post-investigation ADR Program?

9. Under what circumstances should the NRC consider not entering into post-investigation ADR?

10. Is the use of a third party administrator beneficial to the program?

11. Are the mediators perceived as effective and unbiased in supporting the parties' resolution of their differences?

12. Are the mediators familiar with the NRC regulatory environment?

13. What are some areas of this program that present opportunities for improvement?

14. What are some areas of this program that you believe are effective?

IV. Submitting Comments and Accessing Information

Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site, http://www.regulations.gov. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed.

The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.

You can access publicly available documents related to this document using the following methods:

• NRC's Public Document Room (PDR): The public may examine and have copied, for a fee, publicly available documents at the NRC's PDR, O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
• NRC's Agencywide Documents Access and Management System (ADAMS): Publicly available documents created or received at the NRC are available online in the NRC Library at http://www.nrc.gov/​reading-rm/​adams.html. From this page, the public can gain entry into ADAMS, which provides text and image files of the NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's PDR reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to [e-mail].
• Federal Rulemaking Web Site: Public comments and supporting materials related to this notice can be found at http://www.regulations.gov by searching on Docket ID NRC-2011-0208.

V. Draft Agenda

The meeting is currently planned to be held on November 8, 2011, in Room T-2B3 in Two White Flint North at the NRC Headquarters building located at 11556 Rockville Pike, Rockville, Maryland 20852, beginning at 8:30 a.m. and concluding at 5 p.m. (Eastern Standard Time). The agenda will include introductory remarks briefly describing the ADR Program and the use of ADR in the NRC's enforcement program. This will be followed by panel sessions that address the topics provided in Section III of the SUPPLEMENTARY INFORMATION section of this document. A meeting notice with this information and a final agenda will be available on the NRC Public Meeting Schedule Web site at http://www.nrc.gov/​public-involve/​conferences.html at least 10 days prior to the meeting.

Those unable to travel and attend in person may participate by Webinar. The meeting notices on the NRC Public Meeting Schedule Web site will provide information on how those unable to participate in person may do so via Webinar.

Prior to the meeting, attendees are requested to register with one of the contacts listed in the FOR FURTHER INFORMATION CONTACT section of this document so that sufficient accommodations can be made for their participation. Please let the contact know if special services, such as services for the hearing impaired, translation services, etc., are necessary. Please check the NRC Web site (http://www.nrc.gov/​public-involve/​conferences.html and/or http://www.nrc.gov/​about-nrc/​regulatory/​enforcement/​adr.html) for any updates to the meeting schedule and/or additional information about this meeting.

Dated at Rockville, Maryland, this 7th day of October 2011.

For the Nuclear Regulatory Commission.

Roy P. Zimmerman,

Director, Office of Enforcement.