[Federal Register Volume 59, Number 227 (Monday, November 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29171]
[Federal Register: November 28, 1994]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 2
Policy and Procedure for Enforcement Actions; Policy Statement,
Discrimination
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement; revision.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
General Statement of Policy and Procedure for Enforcement Actions
(Enforcement Policy) to address issues associated with discrimination.
A change is also being made to address Commission review of certain
cases involving reports of the Office of Investigations.
DATES: This revision is effective on November 28, 1994.
Comments are due on or before December 28, 1994.
ADDRESSEES: Send written comments to: The Secretary of the Commission,
U.S. Nuclear Regulatory Commission, Washington, DC 20555. Attn:
Docketing and Service Branch. Deliver comments to: 11555 Rockville
Pike, Rockville, Maryland 20852, between 7:45 am and 4:15 pm on Federal
workdays.
Copies of comments may be examined at the NRC Public Document Room,
2120 L Street, NW. (Lower-Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555
(301)-504-2741.
SUPPLEMENTARY INFORMATION: On July 6, 1993, the NRC's Executive
Director for Operations established a review team to reassess the NRC's
program for protecting allegers against retaliation. The review team
report, NUREG-1499,1 Reassessment of the NRC's Program for
Protecting Allegers Against Retaliation, was published in January 1994.
The team report summarizes current processes, gives an overview of
current problems, and gives recommendations for each area that is
discussed. The NRC is adding additional guidance in its Enforcement
Policy to address Recommendations II D.2, D.5., and D.6 of the report
relating to enforcement actions for violations involving
discrimination.
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\1\Copies of NUREG-1499 may be purchased from the Superintendent
of Documents, U.S. Government Printing Office, Mail Stop SSOP,
Washington, DC 20402-9328. Copies are also available from the
National Technical Information Service, 5285 Port Royal Road,
Springfield, Virginia 22161. A copy is also available for inspection
and copying for a fee in the NRC Public Document Room, 2120 L
Street, NW. (Lower Level), Washington, DC 20555-0001.
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The NRC Enforcement Policy is codified at 10 CFR Part 2, Appendix C
to provide widespread dissemination of the Commission's Enforcement
Policy. However, this is a policy statement and not a regulation.
Civil Penalty Adjustment for Corrective Action
Corrective action is a significant factor in mitigation or
escalation of base civil penalties for violations involving
discrimination. A paragraph is being added to B2(b) of Section VI of
the Enforcement Policy to provide an explanation of the corrective
action adjustment factor as applied to discrimination cases. The NRC
can require broad remedial action to improve the workplace environment,
but it cannot require a licensee to provide the individual with a
personal remedy. The Department of Labor (DOL) has the authority to
require that a personal remedy be provided. A violation involving
discrimination is not completely corrected without the personal remedy,
and the chilling effect may well continue if a personal remedy is not
provided. Thus the Commission does not believe that any proposed
penalty should be mitigated if a personal remedy is not provided. A
civil penalty normally should be mitigated for corrective action only
if the licensee takes prompt, comprehensive corrective action which (1)
addresses the broader environment for raising concerns in the
workplace; and (2) provides a remedy for the particular discrimination
at issue. In the determination of whether or not a remedy has been
provided, the NRC considers whether a settlement has been reached or if
a remedy ordered by DOL has been implemented. Where a remedy has been
accepted by DOL, NRC intends to defer to DOL on the adequacy of the
remedy. Cases where a licensee offers an employee a reasonable remedy,
but the employee declines, will be handled on a case by case basis.
The promptness and scope of corrective action should also be
considered in applying the corrective action factor. If settlement
occurs early in the administrative process, mitigation may be warranted
based on corrective actions as the chilling effect may have been
minimized by the promptness of the remedy and remedial action. However,
if settlement occurs after the evidentiary record closes before the
Administrative Law Judge, then any existing chilling effect may have
existed for a substantial time, and the complainant may have had to
spend substantial resources to present his or her case. Under such
situations mitigation normally would not be warranted. If the licensee
does not take broad corrective action until after a Secretary of
Labor's decision, and the Secretary's decision upholds an
Administrative Law Judge's finding of discrimination, corrective action
may be untimely and escalation warranted. If the licensee chooses to
litigate and eventually prevails on the merits of the case, then
enforcement action will not be taken and, if already initiated, will be
withdrawn. Assuming that evidence of discrimination exists, enforcement
action that emphasizes the value of promptly counteracting the
potential chilling effect is warranted.
Enforcement Discretion
It is recognized that there are some cases of discrimination where
enforcement action may not be warranted. Paragraph B(7) is being added
to Section VII to provide an explanation of the types of cases in which
the NRC may refrain from taking enforcement action and those in which
the NRC normally would not exercise such discretion. A licensee who,
without the need for government intervention, identifies an issue of
discrimination and takes corrective action to address both the
particular situation and the overall work environment is helping to
establish a safety-conscious workplace. Aggressive licensee follow-up
also provides a message that retaliation is not acceptable within its
workplace. Assuming that these actions are reasonable and effective,
NRC enforcement action may not be warranted.
Another situation in which enforcement may not be warranted is
where a complaint is filed with the DOL, but the licensee settles the
matter before the DOL Area Office makes a finding of discrimination.
Alternatively, if a finding is made against the licensee, the licensee
may choose to settle before the evidentiary hearing begins. An NRC
policy of not normally citing violations in such cases might encourage
licensee settlements, thereby reducing the potential for chilling
effect. Settlements also provide a more timely remedy for the
complainant and may be used to demonstrate the licensee's commitment to
a retaliation-free environment. Therefore, the NRC may exercise its
discretion not to take enforcement action when the licensee has
publicized (1) that a complaint of discrimination for engaging in
protected activity was made to the DOL; (2) that the matter was settled
to the satisfaction of the employee (the terms of the specific
settlement agreement need not be posted); and (3) that if the DOL Area
Office found discrimination, the licensee has taken action to
positively reemphasize that discrimination will not be tolerated. This
information might be publicized by posting a notice, a newsletter, a
handout, or some other means, but the information should be conveyed in
a manner designed to minimize the chilling effect on others. A similar
approach may be taken when a person comes to the NRC without going to
the DOL.
Even if no formal enforcement action is taken, the NRC would issue
a letter, as is normal practice in similar cases, to emphasize the need
for lasting remedial action. The licensee would also be informed that
future violations may result in enforcement action. In certain cases,
the NRC may also consider entering into a consent order with the
licensee, as part of the settlement process, to address remedial
action.
Whether the exercise of discretion is appropriate will depend on
the circumstances. For example, normally enforcement discretion would
not be appropriate for cases that involve: (1) Allegations of
discrimination as a result of providing information directly to the
NRC; (2) allegations of discrimination caused by a manager above first-
line supervisor (consistent with the current Enforcement Policy
classification of Severity Level I or II violations); (3) allegations
of discrimination where a history of findings of discrimination (by the
DOL or the NRC) or settlements suggest a programmatic rather than an
isolated discrimination problem; (4) allegations of discrimination
which appear particularly blatant or egregious.2 In addition
enforcement discretion normally would not be exercised for cases where
the licensee does not appropriately address the overall work
environment (e.g. by using training, postings, revised policies or
procedures, any necessary disciplinary action, etc. to communicate
corporate policy against discrimination).
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\2\ While enforcement action would normally be warranted in
these four types of cases, depending on the circumstances mitigation
for corrective action may be appropriate.
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Severity Levels
The existing examples of harassment and intimidation in Supplement
VII of the NRC Enforcement Policy focus on the level of management
involved in the discrimination. Additional examples are warranted to
address other considerations associated with discrimination. Example
B(9) will be added as a Severity Level II example to address violations
involving a hostile work environment. Such a violation may be very
significant because the failure by licensee's management to correct a
hostile work environment can have a potentially significant adverse
impact on employees raising issues. In such cases employees may not
believe that they are free to raise concerns.
Supplement VII does not currently address threats of discrimination
or restrictive agreements, both of which are violations under NRC
regulations such as 10 CFR 50.7(f). Example C(10) is being added as a
Severity Level III example to address such violations. This type of
violation is being categorized at a Severity Level III because the
potential impact on future protected activity may be of significant
regulatory concern.
Some discrimination cases may occur which, in themselves, do not
warrant a Severity Level III categorization. Example D(6) is being
added as a Severity Level IV example to address these situations. An
example of such a case might be a single act of discrimination
involving a first-line supervisor, in which the licensee promptly
investigates the matter on its own initiative, takes prompt, decisive
corrective action to limit the potential chilling effect, and thereby
provides a clear message to other supervisors and employees that such
conduct will not be tolerated. Another example might involve a threat
of adverse action against an employee for going around the supervisor
to raise a concern; if the licensee took prompt, aggressive corrective
action before any adverse action was taken toward the employee, such a
case might be considered as having minimal potential for a widespread
chilling effect. These cases would be categorized at a Severity Level
IV because they are of more than minor concern and, if left
uncorrected, could lead to a significant regulatory concern. Therefore,
the Enforcement Policy is being changed to provide the flexibility to
classify less significant discrimination violations as Severity Level
IV. Such cases would normally be considered for exercising enforcement
discretion if warranted under section VII B(7). However, citations
would normally be made if one of the four exceptions in that section
were applicable.
Miscellaneous
The Enforcement Policy is also being changed to reflect current
Commission practice on consultation concerning proposed enforcement
actions involving or relating to Office of Investigation (OI) reports.
This change is being made to Section III.
Paperwork Reduction Act Statement
This final policy statement does not contain a new or amended
information collection requirement subject to the Paperwork Reduction
Act of 1980 (44 U.S.C. 3501 et seq.). Existing requirements were
aproved by the Office of Management and Budget, approval number 3150-
0136.
List of Subjects in Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalty, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND
ISSUANCE OF ORDERS
1. The authority citation for Part 2 continues to read, in part, as
follows:
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841) * * *.
2. Appendix C to Part 2 is amended by--
a. Revising Section III, paragraph (9);
b. Adding a paragraph directly after Section VI, B.2., paragraph
(b);
c. Adding paragraph (7) to Section VII, B.; and
d. In Supplement VII, revising paragraphs B(7), B(8), C(8), C(9),
D(4), and D(5) and adding paragraphs B(9), C(10), and D(6) to read as
follows:
Appendix C to Part 2--General Statement of Policy and Procedure for NRC
Enforcement Actions
* * * * *
III. Responsibilities
* * * * *
(9) Any proposed enforcement case involving an Office of
Investigation (OI) report where the staff (other than the OI staff)
does not arrive at the same conclusions as those in the OI report
concerning issues of intent if the Director of OI concludes that
Commission consultation is warranted; and
* * * * *
VI. Enforcement Actions
* * * * *
B. Civil Penalty
* * * * *
2. Civil Penalty Adjustment Factors
* * * * *
(b) Corrective action.
A civil penalty for violations involving discrimination should
normally only be mitigated if the licensee takes prompt,
comprehensive corrective action that (1) addresses the broader
environment for raising safety concerns in the work place, and (2)
provides a remedy for the particular discrimination at issue.
* * * * *
VII. Exercise of Discretion
* * * * *
B. Mitigation of Enforcement Sanction
* * * * *
(7) Enforcement discretion may be exercised for discrimination
cases where a licensee who, without the need for government
intervention, identifies an issue of discrimination and takes
prompt, comprehensive, and effective corrective action to address
both the particular situation and the overall work environment for
raising safety concerns. Similarly, enforcement may not be warranted
where a complaint is filed with the Department of Labor (DOL) under
Section 211 of the Energy Reorganization Act of 1994, as amended,
but the licensee settles the matter before the DOL makes an initial
finding of discrimination and addresses the overall work
environment. Alternatively, if a finding of discrimination is made,
the licensee may choose to settle the case before the evidentiary
hearing begins. In such cases, the NRC may exercise its discretion
not to take enforcement action when the licensee has addressed the
overall work environment for raising safety concerns and has
publicized that a complaint of discrimination for engaging in
protected activity was made to the DOL, that the matter was settled
to the satisfaction of the employee (the terms of the specific
settlement agreement need not be posted), and that, if the DOL Area
Office found discrimination, the licensee has taken action to
positively reemphasize that discrimination will not be tolerated.
Similarly, the NRC may refrain from taking enforcement action if a
licensee settles a matter promptly after a person comes to the NRC
without going to the DOL. Such discretion would normally not be
exercised in cases in which the licensee does not appropriately
address the overall work environment (e.g., by using training,
postings, revised policies or procedures, any necessary disciplinary
action, etc., to communicate its policy against discrimination) or
in cases that involve: allegations of discrimination as a result of
providing information directly to the NRC, allegations of
discrimination caused by a manager above first-line supervisor
(consistent with current Enforcement Policy classification of
Severity Level I or II violations), allegations of discrimination
where a history of findings of discrimination (by the DOL or the
NRC) or settlements suggests a programmatic rather than an isolated
discrimination problem, or allegations of discrimination which
appear particularly blatant or egregious.
* * * * *
Supplement VII--Miscellaneous Matters
B. Severity Level II--Violations involving for example:
* * * * *
7. A failure to take reasonable action when observed behavior
within the protected area or credible information concerning
activities within the protected area indicates possible unfitness
for duty based on drug or alcohol use;
8. A deliberate failure of the licensee's Employee Assistance
Program (EAP) to notify licensee's management when EAP's staff is
aware that an individual's condition may adversely affect safety
related activities; or
9. The failure of licensee management to take effective action
in correcting a hostile work environment.
C. Severity Level III--Violations involving for example:
* * * * *
8. A failure to assure, as required, that contractors or vendors
have an effective fitness-for-duty program;
9. A breakdown in the fitness for duty program involving a
number of violations of the basic elements of the fitness-for-duty
program that collectively reflect a significant lack of attention or
carelessness towards meeting the objectives of 10 CFR 26.10; or
10. Threats of discrimination or restrictive agreements which
are violations under NRC regulations such as 10 CFR 50.7(f).
D. Severity Level IV - Violations involving for example:
* * * * *
4. Isolated failures to meet basic elements of the fitness-for-
duty program not involving a Severity Level I, II, or III violation;
5. A failure to report acts of licensed operators or supervisors
pursuant to 10 CFR 26.73; or
6. Discrimination cases which, in themselves, do not warrant a
Severity Level III categorization.
* * * * *
Dated at Rockville, MD, this 21st day of November, 1994.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Acting Secretary of the Commission.
[FR Doc. 94-29171 Filed 11-25-94; 8:45 am]
BILLING CODE 7590-01-P
