[Federal Register Volume 62, Number 56 (Monday, March 24, 1997)]
[Notices]
[Pages 13906-13908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7315]
[[Page 13906]]
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NUCLEAR REGULATORY COMMISSION
[NUREG-1600]
Policy and Procedure for Enforcement Actions; Policy Statement
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement amendment; request for comments.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
General Statement of Policy and Procedure for Enforcement Actions
(Enforcement Policy) regarding predecisional enforcement conferences
that are based on findings of discrimination. For appropriate cases,
this amendment will allow some degree of participation by the
complainant in the predecisional enforcement conference.
DATES: This amendment is effective on March 24, 1997. Comments are due
on or before April 23, 1997.
ADDRESSES: Send written comments to: The Secretary of the Commission,
U.S. Nuclear Regulatory Commission, Washington, DC 20555. ATTN:
Docketing and Service Branch. Hand deliver comments to: 11555 Rockville
Pike, Rockville, Maryland, between 7:45 am and 4:15 pm, Federal
workdays. Copies of comments received may be examined at the NRC Public
Document Room, 2120 L Street, NW. (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
(301) 415-2741.
SUPPLEMENTARY INFORMATION: The Commission's Enforcement Policy was
first issued on September 4, 1980. The Enforcement Policy is published
as NUREG-1600, ``General Statement of Policy and Procedure for NRC
Enforcement Actions (60 FR 34381; June 30, 1995).'' Section V of the
current policy provides that, when the NRC learns of a potential
violation for which escalated action may be warranted, the NRC will
normally provide the licensee an opportunity for a predecisional
enforcement conference prior to taking the enforcement action. These
predecisional enforcement conferences are a means for the NRC to gain
additional information that will assist in determining the appropriate
course of action.
The Commission is modifying its Enforcement Policy for
predecisional enforcement conferences in which the conference is based
on an NRC Office of Investigations (OI) report finding that
discrimination as defined under 10 CFR 50.7 (or similar provisions in
Parts 30, 40, 60, 70, or 72) has occurred. In such cases, the OI report
will normally be made public, subject to withholding certain
information (i.e., after appropriate redaction), and any resulting
predecisional enforcement conference will normally be open to public
observation. In a case where a particular individual is being
considered potentially responsible for the discrimination, the
conference will remain closed. In either case (i.e., whether the
conference is open or closed), the employee or former employee who was
the subject of the alleged discrimination (hereafter referred to as
``complainant'') will normally be provided an opportunity to
participate in the predecisional enforcement conference.
These enforcement conferences will normally be held in the NRC's
regional offices. Participation in the conference in person will be at
the complainant's own expense. This participation will normally be in
the form of a complainant statement and presentation in followup to the
licensee's presentation, followed in turn by an opportunity for the
licensee to rebut the complainant's presentation. In cases where the
complainant is unable to attend in person, arrangements will be made
for the complainant's participation by telephone or an opportunity
given for the complainant to submit a written rebuttal to the
licensee's presentation. If the licensee chooses to forego an
enforcement conference and, instead, responds to the NRC's findings in
writing, the complainant will be provided the opportunity to submit a
written rebuttal to the licensee's response. For cases involving
potential discrimination by a contractor or vendor to the licensee, any
associated predecisional enforcement conference with the contractor or
vendor would be handled similarly. These arrangements for complainant
participation in the predecisional enforcement conference are not to be
conducted or viewed in any respect as an adjudicatory hearing. As with
any NRC meeting, the presiding officer of the conference may limit
participation as necessary to control the conduct of the meeting.
This approach will give both the complainant and the licensee (or
contractor) the opportunity to present their positions on the
discrimination issue, and it should provide additional information on
which the staff may base its initial enforcement decision. It may serve
to address past concerns that the NRC bases its decision on enforcement
action solely on the licensee's presentation. At the same time, it
could lead to additional allegations and issues concerning false or
misleading statements, and it could lengthen the process. This approach
may also raise concerns that the licensee will have more extensive
resources than the complainant, enabling it to better present its
position. In any event, these enforcement conferences are not
adjudicatory forums, but rather a means to obtain additional
information from the perspective of both the licensee and the
complainant. The Commission intends, therefore, to limit both the
licensee and the complainant to simple presentations and rebuttals
without allowing experts to testify on the issues or allowing cross-
examination of witnesses by the licensee or complainant. As with other
predecisional enforcement conferences, the NRC staff will, where
appropriate, question licensee's supervisors and their representatives
to understand as clearly as possible the circumstances of the case.
Finally, for cases in which there is a full adjudicatory record
before the Department of Labor, the NRC may not need to hold a
predecisional enforcement conference. If a conference is held in such
cases, generally the conference will focus on the licensee's corrective
action. As with discrimination cases based on OI investigations, the
complainant may be allowed to participate.
Paperwork Reduction Act Statement
This policy statement does not contain a new or amended information
collection requirement subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the
Office of Management and Budget, approval number 3150-0136. The
approved information collection requirements contained in this policy
statement appear in Section VII.C.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Small Business Regulatory Enforcement Fairness Act
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the NRC has determined that this action is not a
``major rule'' and has verified this determination with the Office of
Information and Regulatory Affairs, Office of Management and Budget.
[[Page 13907]]
Accordingly, the NRC Enforcement Policy, Section V, ``Predecisional
Enforcement Conferences,'' is amended as follows:
General Statement of Policy and Procedure for NRC Enforcement Actions
* * * * *
V. Predecisional Enforcement Conferences
Whenever the NRC has learned of the existence of a potential
violation for which escalated enforcement action appears to be
warranted, or recurring nonconformance on the part of a vendor, the NRC
may provide an opportunity for a predecisional enforcement conference
with the licensee, vendor, or other person before taking enforcement
action. The purpose of the conference is to obtain information that
will assist the NRC in determining the appropriate enforcement action,
such as: (1) A common understanding of facts, root causes and missed
opportunities associated with the apparent violations, (2) a common
understanding of corrective actions taken or planned, and (3) a common
understanding of the significance of issues and the need for lasting
comprehensive corrective action.
If the NRC concludes that it has sufficient information to make an
informed enforcement decision, a conference will not normally be held
unless the licensee requests it. However, an opportunity for a
conference will normally be provided before issuing an order based on a
violation of the rule on Deliberate Misconduct or a civil penalty to an
unlicensed person. If a conference is not held, the licensee will
normally be requested to provide a written response to an inspection
report, if issued, as to the licensee's views on the apparent
violations and their root causes and a description of planned or
implemented corrective actions.
During the predecisional enforcement conference, the licensee,
vendor, or other persons will be given an opportunity to provide
information consistent with the purpose of the conference, including an
explanation to the NRC of the immediate corrective actions (if any)
that were taken following identification of the potential violation or
nonconformance and the long-term comprehensive actions that were taken
or will be taken to prevent recurrence. Licensees, vendors, or other
persons will be told when a meeting is a predecisional enforcement
conference.
A predecisional enforcement conference is a meeting between the NRC
and the licensee. Conferences are normally held in the regional offices
and are normally open to public observation. Conferences will not
normally be open to the public if the enforcement action being
contemplated:
(1) Would be taken against an individual, or if the action, though
not taken against an individual, turns on whether an individual has
committed wrongdoing;
(2) Involves significant personnel failures where the NRC has
requested that the individual(s) involved be present at the conference;
(3) Is based on the findings of an NRC Office of Investigations
report that has not been publicly disclosed; or
(4) Involves safeguards information, Privacy Act information, or
information which could be considered proprietary;
In addition, conferences will not normally be open to the public
if:
(5) The conference involves medical misadministrations or
overexposures and the conference cannot be conducted without disclosing
the exposed individual's name; or
(6) The conference will be conducted by telephone or the conference
will be conducted at a relatively small licensee's facility.
Notwithstanding meeting any of these criteria, a conference may
still be open if the conference involves issues related to an ongoing
adjudicatory proceeding with one or more intervenors or where the
evidentiary basis for the conference is a matter of public record, such
as an adjudicatory decision by the Department of Labor. In addition,
notwithstanding the above normal criteria for opening or closing
conferences, with the approval of the Executive Director for
Operations, conferences may either be open or closed to the public
after balancing the benefit of the public's observation against the
potential impact on the agency's decision-making process in a
particular case.
The NRC will notify the licensee that the conference will be open
to public observation. Consistent with the agency's policy on open
meetings, ``Staff Meetings Open to Public,'' published September 20,
1994 (59 FR 48340), the NRC intends to announce open conferences
normally at least 10 working days in advance of conferences through (1)
notices posted in the Public Document Room, (2) a toll-free telephone
recording at 800-952-9674, (3) a toll-free electronic bulletin board at
800-952-9676, and on the World Wide Web at the NRC Office of
Enforcement homepage (www.nrc.gov/OE). In addition, the NRC will also
issue a press release and notify appropriate State liaison officers
that a predecisional enforcement conference has been scheduled and that
it is open to public observation.
The public attending open conferences may observe but may not
participate in the conference. It is noted that the purpose of
conducting open conferences is not to maximize public attendance, but
rather to provide the public with opportunities to be informed of NRC
activities consistent with the NRC's ability to exercise its regulatory
and safety responsibilities. Therefore, members of the public will be
allowed access to the NRC regional offices to attend open enforcement
conferences in accordance with the ``Standard Operating Procedures For
Providing Security Support For NRC Hearings and Meetings,'' published
November 1, 1991 (56 FR 56251). These procedures provide that visitors
may be subject to personnel screening, that signs, banners, posters,
etc., not larger than 18'' be permitted, and that disruptive persons
may be removed. The open conferences will be terminated if disruption
interferes with a successful conference. NRC's Predecisional
Enforcement Conferences (whether open or closed) normally will be held
at the NRC's regional offices or in NRC Headquarters Offices and not in
the vicinity of the licensee's facility.
For a case in which an NRC Office of Investigations (OI) report
finds that discrimination as defined under 10 CFR 50.7 (or similar
provisions in Parts 30, 40, 60, 70, or 72) has occurred, the OI report
will be made public, subject to withholding certain information (i.e.,
after appropriate redaction), and any resulting predecisional
enforcement conference will normally be open to public observation. In
a conference where a particular individual is being considered
potentially responsible for the discrimination, the conference will
remain closed. In either case (i.e., whether the conference is open or
closed), the employee or former employee who was the subject of the
alleged discrimination (hereafter referred to as ``complainant'') will
normally be provided an opportunity to participate in the predecisional
enforcement conference. This participation will normally be in the form
of a complainant statement and presentation in followup to the
licensee's presentation, followed in turn by an opportunity for the
licensee to rebut the complainant's presentation. In cases where the
complainant is unable to attend in person, arrangements will be made
for the complainant's participation by telephone or an opportunity
given for the complainant to submit a written rebuttal to the
[[Page 13908]]
licensee's presentation. If the licensee chooses to forego an
enforcement conference and, instead, responds to the NRC's findings in
writing, the complainant will be provided the opportunity to submit a
written rebuttal to the licensee's response. For cases involving
potential discrimination by a contractor or vendor to the licensee, any
associated predecisional enforcement conference with the contractor or
vendor would be handled similarly. These arrangements for complainant
participation in the predecisional enforcement conference are not to be
conducted or viewed in any respect as an adjudicatory hearing.
A predecisional enforcement conference may not need to be held in
cases where there is a full adjudicatory record before the Department
of Labor. If a conference is held in such cases, generally the
conference will focus on the licensee's corrective action. As with
discrimination cases based on OI investigations, the complainant may be
allowed to participate.
Members of the public attending open conferences will be reminded
that (1) the apparent violations discussed at predecisional enforcement
conferences are subject to further review and may be subject to change
prior to any resulting enforcement action and (2) the statements of
views or expressions of opinion made by NRC employees at predecisional
enforcement conferences, or the lack thereof, are not intended to
represent final determinations or beliefs.
When needed to protect the public health and safety or common
defense and security, escalated enforcement action, such as the
issuance of an immediately effective order, will be taken before the
conference. In these cases, a conference may be held after the
escalated enforcement action is taken.
* * * * *
Dated at Rockville, Maryland, this 17th day of March, 1997.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 97-7315 Filed 3-21-97; 8:45 am]
BILLING CODE 7590-01-P
