04-8872. Proposed Interim Enforcement Policy for Pilot Program on the Use of Alternative Dispute Resolution in the Enforcement Program Request for Comments  

  • [Federal Register Volume 69, Number 76 (Tuesday, April 20, 2004)]
    [Notices]
    [Pages 21166-21171]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 04-8872]
    
    
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    NUCLEAR REGULATORY COMMISSION
    
    
    Proposed Interim Enforcement Policy for Pilot Program on the Use 
    of Alternative Dispute Resolution in the Enforcement Program Request 
    for Comments
    
    AGENCY: Nuclear Regulatory Commission.
    
    ACTION: Request for comments on pilot program.
    
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    SUMMARY: The Nuclear Regulatory Commission (NRC) is seeking public 
    comment on a proposed pilot program to address the use of Alternative 
    Dispute Resolution (ADR) in the enforcement program.
    
    DATES: Submit comments on or before May 20, 2004.
    
    ADDRESSES: You may submit comments by any of the following methods. 
    Comments submitted in writing or in electronic format will be made 
    available to the public in their entirety on the NRC rulemaking Web 
    site. Personal information will not be removed from your comments. Mail 
    comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, 
    DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
        E-mail comments to: [email protected] If you do not receive a reply e-
    mail confirming that we have received your
    
    [[Page 21167]]
    
    comments, contact us directly (301) 415-1966. You may also submit 
    comments via the NRC's interactive rulemaking Web site at http://
    ruleforum.llnl.gov. Address questions about our rulemaking Web site to 
    Carol Gallagher at (301) 415-5905 (e-mail: [email protected]).
        Hand deliver comments to: 11555 Rockville Pike, Rockville, 
    Maryland, between 7:30 a.m. and 4:15 p.m. on Federal workdays. 
    (Telephone (301) 415-1966).
        Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
    (301) 415-1101.
        Publicly available documents related to this action may be viewed 
    electronically on the public computers located at the NRC's Public 
    Document Room (PDR), O1F21, One White Flint North, 11555 Rockville 
    Pike, Rockville, Maryland. The PDR reproduction contractor will copy 
    documents for a fee. Selected documents, including comments, may be 
    viewed and downloaded electronically via the NRC's interactive 
    rulemaking Web site at http://ruleforum.llnl.gov.
        Publicly 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 
    e-mail to [email protected]
        The NRC maintains the current Enforcement Policy on its Web site at 
    http://www.nrc.gov, select What We Do, Enforcement, then Enforcement 
    Policy.
    
    FOR FURTHER INFORMATION CONTACT: Nick Hilton, Senior Enforcement 
    Specialist, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
    Washington, DC 20555-0001, (301) 415-2741, e-mail [email protected]
    
    SUPPLEMENTARY INFORMATION: The Commission approved an NRC staff 
    proposal to develop a pilot program on the use of ``Alternative Dispute 
    Resolution'' (ADR) in cases involving the NRC's enforcement activities 
    concerning allegations or findings of discrimination and other 
    wrongdoing. See SECY-03-0115. ``ADR'' is a term that refers to a number 
    of processes that can be used in assisting parties in resolving 
    disputes and potential conflicts. Most of these processes are 
    voluntary, where the parties to the dispute are in control of the 
    decision on whether to participate in the process and whether to agree 
    to any resolution of the dispute. The parties are assisted in their 
    efforts to reach agreement by a neutral third party. As an initial step 
    in the development of the pilot program, the NRC held a public workshop 
    on December 10, 2003, to discuss multiple issues. These issues were 
    summarized in a document on the NRC's Web site at http://www.nrc.gov: 
    select What We Do, Enforcement, then Alternative Dispute Resolution. 
    This document is also available in ADAMS at ML033290248.
        The NRC staff has developed a proposed interim enforcement policy 
    statement for implementation of the pilot program. The NRC staff 
    believes this proposed program is responsive to many of its 
    stakeholders' comments and concerns. A balance was attempted to be 
    achieved between public confidence in the process and increased 
    efficiency and effectiveness.
        Several issues were identified for further discussion in SECY-03-
    0115, others were identified as the pilot program was outlined by the 
    NRC, and stakeholder comments added a few more. Most of the concerns 
    focused on Early ADR. Early ADR is defined for the pilot program 
    purposes as ADR between a licensee or contractor and an employee who 
    has raised a prima facie case of discrimination prior to any NRC 
    investigation. The NRC believes many of the issues have been adequately 
    addressed in the proposed pilot program. However, some issues remain 
    and are described briefly below.
    
    General Issues
    
        Selection of a neutral agreeable to all parties is fundamental to 
    the success of ADR. The parties must agree that the neutral is truly 
    neutral and unbiased. Most stakeholders believed external neutrals, 
    rather than internal NRC neutrals, were necessary to ensure that all 
    parties viewed the neutral as unbiased. Some suggested a roster of 
    neutrals should be available for the parties to select from. The NRC, 
    based on input from internal and external experts, determined a list of 
    organizations that have established rosters of neutrals will be 
    provided on the Office of Enforcement's (OE) ADR Web page, with the 
    allowance that any neutral the parties agree to will be acceptable.
        Payment of neutral fees during Early ADR was considered at length. 
    The NRC is sensitive to the fact that whistleblowers would not likely 
    have the financial ability to pay half of a neutral's fee as is the 
    typical custom in ADR. However, if licensees pay the entire fee, 
    whistleblowers would likely be concerned about the neutral's bias. 
    Therefore, the staff requested comments regarding how neutrals should 
    be paid in Early ADR. Stakeholders agreed that the NRC should pay for 
    the neutral's services and, at least through the pilot program, the NRC 
    should assess licensee fees for the expense of neutrals in Early ADR 
    through 10 CFR Part 171. After an investigation has been completed and 
    the matter is under consideration for possible NRC enforcement action, 
    the NRC and the licensee will be the parties to the ADR, with each 
    paying half of the neutral's fee.
    
    Issues Related to Early ADR
    
        The NRC believes that, consistent with the existing Enforcement 
    Policy and in addition to the NRC-sponsored Early ADR option, licensees 
    should be encouraged to develop ADR programs of their own for use in 
    conjunction with an employee concerns type program. However, licensees 
    have made it clear that a significant impediment to both that type of 
    program and the proposed NRC Early ADR program is the threat of an 
    investigation after the case is settled. Many external stakeholders 
    were explicit in stating that there must be certainty that if the 
    parties arrive at a settlement, the NRC will not initiate an 
    investigation or enforcement action regarding the same issue. The same 
    stakeholders acknowledge an NRC review of a settlement for any 
    restrictive agreements in violation of the Employee Protection 
    regulations is important and should be conducted. Therefore, the NRC 
    proposes that should an employee who alleges retaliation for engaging 
    in protected activity utilize a licensee's program to settle the 
    discrimination concern, no NRC investigation will be initiated until it 
    is determined whether a settlement can be reached. If a settlement is 
    reached through a licensee's program, the NRC would review the 
    settlement for restrictive agreements in violation of 10 CFR 50.7(f) et 
    al, and abuse of the ADR process. If an acceptable settlement is 
    reached, the NRC will not investigate or take enforcement action.
        The NRC is developing a booklet for whistleblowers who are 
    considering requesting Early ADR. Most whistleblowers will not have any 
    knowledge of the concept of ADR, either positive or negative, or the 
    NRC's program. The ADR booklet will provide an overview of the NRC's 
    Early ADR program and ADR in general, supplementing the allegation 
    booklet
    
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    already provided to concerned individuals. In addition, information 
    regarding the pilot program will be placed on the Office of 
    Enforcement's web page and be available to any party.
        The NRC believes the more timely resolution of discrimination 
    concerns that should be brought about by Early ADR will be a greater 
    benefit to the safety conscious work environment (SCWE) than the 
    potential negatives associated with the process. However, some of the 
    potential shortcomings of the process are worth discussion.
        Stakeholders from the industry and those representing 
    whistleblowers suggested that Early ADR settlements are not appropriate 
    means for documenting SCWE corrective actions. Rather, the industry 
    offered to use some other vehicle and suggested the NRC could address 
    concerns related to the SCWE through the inspection process. However, 
    the NRC notes that there would not be a prohibition from including SCWE 
    corrective actions in a settlement agreement if the parties wanted to 
    consider them as a possible element of a settlement. In fact, one of 
    the parties may find it appropriate to consider such actions as part of 
    the settlement. While the inspection process alone would allow the NRC 
    an avenue to suggest necessary SCWE actions, the suggestions would not 
    be binding as they may be if included in a settlement agreement.
        Whistleblower representatives and several internal stakeholders 
    have concerns regarding cases where deliberate misconduct appeared to 
    have played a role in a discrimination case. The industry has suggested 
    that the process will take care of the issue, e.g. the industry does 
    not want management engaged in deliberate misconduct either and will 
    independently take appropriate corrective action as warranted. On an 
    individual case basis, the NRC believes that such abuse may be 
    prevented by the whistleblowers who believe they have been wronged in a 
    deliberate or malicious manner and therefore do not agree to Early ADR. 
    The NRC believes that on an overall program basis, particularly 
    egregious scenarios where discrimination could eventually be identified 
    through the number of allegations at a particular facility. On average, 
    only a few percent of the cases investigated each year result in a 
    determination of deliberate discrimination. While the NRC recognizes 
    that settlements in an Early ADR case have the potential to involve 
    deliberate misconduct, the NRC believes that early settlements and 
    corrective actions will limit the potential chilling effect at the 
    site, thereby furthering the site's SCWE. Therefore, on balance, the 
    NRC believes that early settlements outweigh the risk of not taking an 
    enforcement action on a case involving deliberate misconduct.
        The NRC's proposed pilot program includes a nominal time period of 
    90 days from an agreement to mediate between the parties for a 
    settlement to be reached by the parties. This limitation is 
    appropriate, particularly regarding Early ADR, to ensure the attempted 
    negotiations do not significantly delay further processing of the case. 
    A key assumption for the success of Early ADR is the quick resolution 
    of issues between the licensee and whistleblower. Failure to reach an 
    agreement quickly will detract from the potential benefits of Early ADR 
    as well as potentially making subsequent investigation, if necessary, 
    more difficult. For cases considered after the issuance of an OI report 
    of investigation, the NRC will be a party and therefore more in control 
    of the negotiation timetable.
        Stakeholders representing both the industry and whistleblowers have 
    made it clear that settlements resulting from the Early ADR process 
    will take the form of an agreement resolving the conflict between the 
    two parties, i.e., the complainant and the licensee (or the licensee's 
    contractor). This may give Early ADR the appearance of a Department of 
    Labor (DOL) proceeding. However, the NRC, which is not a party to the 
    negotiation, will not take any position on the merits of the case, and 
    will not impose any personal remedy.
        In order to provide additional assurance to a whistleblower that 
    the pressure of a negotiation does not result in an agreement the 
    whistleblower later regrets, a 3 day waiting period is included prior 
    to a settlement in Early ADR going into full effect.
        One representative of the public was concerned that Early ADR could 
    reveal the existence of documentation to a licensee that, if the ADR 
    session failed, could be destroyed prior to an investigation. The 
    suggestion was to require an index of documents used (if any) during 
    the ADR session. This list could be provided to the NRC as evidence of 
    existence of those documents. After consideration, the staff concluded 
    that maintaining records and documents produced during confidential ADR 
    sessions may be problematic and the proposed scenario was unlikely. 
    Both internal and external expert neutrals indicated that copies of all 
    documents used in a joint session are routinely provided to all parties 
    and that it is unlikely a ``sensitive'' document of this type would be 
    offered at a joint session unless a party was comfortable with it. 
    Therefore, the hypothetical destruction of evidence would be unlikely 
    to succeed in that both parties have copies of the documents.
        Accordingly, the proposed revision to the NRC Enforcement Policy 
    reads as follows:
    
    General Statement of Policy and Procedure for NRC Enforcement Actions
    * * * * *
    
    INTERIM ENFORCEMENT POLICIES
    
    * * * * *
    
    Interim Enforcement Policy Regarding Enforcement Discretion For Certain 
    Fitness-for-Duty Issues (10 CFR Part 26)
    
    * * * * *
    
    Interim Policy for the Use of ADR in the Enforcement Program
    
    I. Introduction
    
    A. Background
    
        This section sets forth the interim enforcement policy that the NRC 
    will follow to undertake a pilot program testing the use of Alternative 
    Dispute Resolution (ADR) in the enforcement program.
    
    B. Scope
    
        The pilot program scope consists of the trial use of ADR for cases 
    involving: (1) Alleged discrimination for engaging in protected 
    activity prior to an NRC investigation; and (2) both discrimination and 
    other wrongdoing cases after the Office of Investigations has competed 
    an investigation. Specific points in the enforcement process where ADR 
    may be requested are specified below. Mediation will be the form of ADR 
    typically utilized. Certain cases may only require facilitation, a 
    process where the neutral's function is primarily to support the 
    communication process rather than focusing on the parties reaching a 
    settlement.
    
        Note: Although the NRC's ADR program may cause the parties to 
    negotiate issues which may also form the basis for a claim under 
    Section 211 of the Energy Reorganization Act of 1974, as amended, 
    the Department of Labor's (DOL) timeliness requirements for filing a 
    claim are in no way altered by the NRC's program.
    
    
        In cases involving an allegation of discrimination, any underlying 
    technical issue will be treated as a separate issue, or concern, within 
    the allegation program. The allegation program will be used to resolve 
    concerns (typically safety concerns) and issues other than the 
    discrimination complaint.
    
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    II. General
    
    A. Responsibilities and Program Administration
    
        The Director, OE, is responsible for the overall program. In 
    addition, the Director, OE, will serve as the lead NRC negotiator for 
    cases involving discrimination after OI completes an investigation. The 
    Director, OE, may also designate the Deputy Director, OE, to act as the 
    lead negotiator.
        Regional Administrators are designated as the lead NRC negotiator 
    for cases involving wrongdoing other than discrimination. The Regional 
    Administrator may designate the Deputy Regional Administrator to act as 
    the lead negotiator or the Director or Deputy Director, OE, may also 
    serve as the lead negotiator for other wrongdoing cases.
        The Program Administrator will provide program oversight and 
    support for each region and headquarters program offices. Program and 
    neutral evaluations will be provided to the Program Administrator. The 
    Program Administrator will serve as the intake neutral for post 
    investigation ADR. An ``intake neutral'' develops information and 
    processes information for mediation. As an intake neutral, the 
    confidentiality provisions discussed below will apply.
        The Office Allegation Coordinators (OACs) are normally a 
    complainant's first substantive contact when a concern regarding 
    discrimination is raised. As such, the OACs will also serve as an 
    intake neutral who develops information and processes the necessary 
    information for mediation under Early ADR. The confidentiality 
    provisions in Section II.B.7 will apply to the OAC and Program 
    Administrator. The OAC will also process documentation necessary to 
    operate the program.
    
    B. General Rules/Principles
    
        Unless specifically addressed in a subsequent section, the rules 
    described in this section apply generally throughout the ADR program, 
    regardless of where in the overall enforcement process the ADR sessions 
    occur.
        1. Voluntary. Use of the NRC ADR program is voluntary, and any 
    participant may end the mediation at any time. The goal is to obtain an 
    agreement satisfactory to all participants on issues in controversy.
        2. Neutral qualification. Generally, a neutral should be 
    knowledgeable and experienced with nuclear matters or labor and 
    employment law. However, any neutral that is satisfactory to the 
    parties is acceptable.
        3. Roster of neutrals. OE will maintain a list of organizations 
    from which services of neutrals could be obtained. The parties may 
    select a mediator from any of these organizations; however, the parties 
    are not required to use the organizations provided and any neutral 
    mutually agreeable to the parties is acceptable.
        4. Mediator selection. If the parties have not selected a mediator 
    within fourteen days, the Program Administrator or OAC may propose a 
    mediator for the parties' consideration.
        5. Neutrality. Mediators are neutral. The role of the mediator is 
    to provide an environment where all participants will have an 
    opportunity to resolve their differences. The parties should each 
    consult an attorney or other professional if any question of law, 
    content of a proposed agreement on issues in controversy, or other 
    issues exists.
        For Early ADR, the OAC will serve as an intake neutral. Should any 
    party seek to discuss the NRC's enforcement ADR process in detail, the 
    party should be referred to the OAC. The OAC will initiate discussion 
    of the option to mediate and process the necessary documentation. 
    Subsequently, for post investigation ADR, the program administrator 
    will serve as the intake neutral. Due to the nature of conversations 
    that typically occur between an intake neutral and the parties, these 
    conversations will also be considered confidential.
        6. Mediation sessions. Once selected by the parties and contracted 
    by the OAC, the mediator will promptly contact each of the parties to 
    discuss the mediation process under the Program, reconfirm party 
    interest in proceeding, establish a date and location for the mediation 
    session and obtain any other information s/he believes likely to be 
    useful. The mediator will preside over all mediation sessions, and will 
    be expected to complete the mediation within 90 days after referral 
    unless the parties, and the NRC if not a party, agree otherwise. At the 
    conclusion of the mediation, parties will be asked to fill out and 
    submit an evaluation form for the mediator that will be sent to the 
    Program Administrator.
        Normally, a settlement is expected to be reached and signed within 
    90 days from when the parties agree to attempt ADR. A principal reason 
    for Early ADR is the quick resolution of the claim, thereby improving 
    the SCWE. If the parties cannot agree to a settlement within 90 days, 
    the NRC must assume a settlement will not be reached and continue with 
    the investigation and enforcement process. Where good cause is shown 
    and all parties agree, the NRC may allow a small extension to the 90 
    day limit to allow for completion of a settlement agreement.
        Settlement agreements in Early ADR will not be final until 3 days 
    after the agreement has been signed. Either party may reconsider the 
    settlement agreement during the 3 day period. Subsequent concerns 
    regarding implementation of the settlement agreement should be directed 
    to the neutral, or if necessary, the OAC.
        7. Confidentiality. The mediator will specifically inform all 
    parties and other attendees that all mediation activities under the 
    Program are subject to the confidentiality provisions of the 
    Administrative Dispute Resolution Act, 5 U.S.C. Sections 571-584; the 
    Federal ADR Council's guidance document entitled ``Confidentiality in 
    Federal ADR Programs;'' and the explicit confidentiality terms set 
    forth in the Agreement to Begin Voluntary Mediation signed by the 
    parties. The mediator will explain these confidentiality terms and 
    offer to answer questions regarding them.
        8. Good Faith. All participants will participate in good faith in 
    the mediation process and explore potentially feasible options that 
    could lead to the management or resolution of issues in controversy.
        9. Not legal representation. A mediator is not a legal 
    representative or legal counsel. The mediator will not represent any 
    party in the instant case or any future proceeding or matter relating 
    to the issues in controversy in this case. The mediator is not either 
    party's lawyer and no party should rely on the mediator for legal 
    advice.
        10. Mediator Fees. If Early ADR (defined below) is utilized, the 
    NRC, subject to the availability of funds, will pay the mediator's 
    entire fee. For cases where a licensee requests ADR subsequent to the 
    completion of an OI report, the licensee requesting ADR will pay half 
    of the mediator's fee and the NRC, subject to the availability of 
    funds, will pay half. The NRC will recover the mediator fees it pays 
    through annual fees assessed to licensees under 10 CFR Part 171.
        11. Exceptions. The only exception to the offering of Early ADR by 
    the NRC will be abuse of the program, e.g., a large number of 
    repetitive requests for ADR by a particular facility, contractor or 
    whistleblower. Should the NRC believe the ADR program has been abused 
    in some manner by one of the parties potentially involved, the 
    Director, OE will be notified.
        To maximize the potential use of the ADR pilot program, for cases 
    after an OI investigation is completed, the NRC will at least consider 
    negotiating a settlement
    
    [[Page 21170]]
    
    with a licensee for any wrongdoing case if requested. However, there 
    may be certain circumstances where it may not be appropriate for the 
    NRC to engage in ADR.
        12. Number of settlement attempts. Each case will be afforded a 
    maximum of two attempts to reach a settlement on the same underlying 
    issue through the use of ADR. An ``attempt'' is defined as one or more 
    mediated sessions conducted at a specific point in the NRC's 
    enforcement process (generally within a 90 day period). However, in 
    general, settlement at any time without the use of a neutral is not 
    precluded by the ADR program.
        13. Finality. Cases that reach a settlement (and are acceptable to 
    the NRC), either in Early ADR or after an OI investigation is complete, 
    constitute a final enforcement decision on the case by the NRC.
    
    III. ADR Opportunities
    
    A. Licensee Sponsored Programs
    
        Licensees are encouraged to develop ADR programs of their own for 
    use in conjunction with an employee concerns type program. If an 
    employee who alleges retaliation for engaging in protected activity 
    utilizes a licensee's program to settle the discrimination concern, 
    either before or after contacting the NRC, the licensee may voluntarily 
    report the settlement to the NRC as a settlement within the NRC's 
    jurisdiction. If notified of the settlement, the NRC will review the 
    settlement for restrictive agreements potentially in violation of 10 
    CFR 50.7(f), et al. Assuming no such restrictive agreements exist, the 
    NRC will not investigate or take enforcement action.
    
    B. Early ADR
    
        The term ``Early ADR'' refers to the use of ADR prior to an OI 
    investigation. The parties to Early ADR will normally be the 
    complainant and the licensee. If the complainant is an employee of a 
    licensee contractor, the parties will be the complainant and the 
    contractor. Generally, the Early ADR process will parallel and work in 
    conjunction with the NRC allegation program.
        The allegation process will be used through the determination of a 
    prima facie case. If an Allegation Review Board (ARB) determines a 
    prima facie case exists, the ARB will normally recommend the parties be 
    offered the opportunity to use Early ADR. Exceptions to such a 
    recommendation should be rare and be based solely on an identified and 
    articulated abuse of the ADR process by a party who would be involved 
    in the case under consideration. Exceptions will be approved by the 
    Director, OE, prior to initiating an investigation based on denial of 
    ADR.
        Early ADR cases will be tracked in the Allegation Management System 
    (AMS). However, the allegation process timeliness measurement will be 
    stayed once the ARB determines that ADR should be offered until the 
    point in time ADR is declined by either party or the case is settled.
        When an agreement is reached, the mediator will record the terms of 
    that agreement. The parties may sign the agreement at the mediation 
    session, or any party may review the agreement with his/her attorney 
    before the document is placed in final form and signed. However, as 
    noted above, settlement agreements in Early ADR will not be final until 
    at least 3 days after the agreement has been signed. No participant 
    will hold the NRC liable for the results of the mediation, whether or 
    not a resolution is reached.
        A settlement agreement between the parties will be reviewed by the 
    NRC. OE will coordinate the review with the Office of the General 
    Counsel (OGC). The review will ensure that no restrictive agreements in 
    violation of 10 CFR 50.7(f) et al, are contained in the settlement and 
    will normally be completed within 5 working days of receipt. Given an 
    acceptable settlement, the NRC will not investigate or take enforcement 
    action.
        The NRC expects that parties to Early ADR will agree to some form 
    of confidentiality. However, that agreement cannot extend to the 
    reporting of any safety concerns potentially discussed during the ADR 
    sessions if one of the parties desires to report the concern. Either 
    party may report safety concerns discussed during ADR sessions to the 
    NRC without regard to confidentiality agreements. Safety concerns and 
    their disposition may be discussed between the parties if desired. In 
    cases where an Early ADR negotiation is between a licensee contractor 
    and the contractor's employee, the NRC expects the contractor to ensure 
    the licensee is aware of any safety issues discussed during the 
    negotiations.
        In addition to the settlement agreement, the licensee should 
    provide the NRC with any planned or completed actions relevant to the 
    safety conscious work environment that the licensee has determined to 
    be appropriate.
        Generally no press release or other public announcement will be 
    made by the NRC for cases settled by early ADR. However, all documents, 
    including the proposed settlement agreement, submitted to the NRC will 
    be official agency records, and while not generally publicly available, 
    still subject to the Freedom of Information Act (FOIA).
        Documents associated with processing an Early ADR case will not 
    generally be publicly available, consistent with the allegation 
    program. However, documents may be subject to the FOIA and may be 
    released, subject to redaction, pursuant to a FOIA request.
        Some negotiations may fail to settle the case. When a settlement is 
    not reached, the appropriate intake neutral will be notified, typically 
    by the mediator, and an ARB will determine the appropriate action in 
    accordance with the allegation program.
    
    C. Post-Investigation ADR
    
        Post-investigation ADR refers to the use of ADR anytime after an OI 
    investigation is complete and an enforcement panel concludes that 
    pursuit of an enforcement action appears warranted. Generally, post-
    investigation ADR processes will parallel and work in conjunction with 
    the NRC enforcement program.
        After an investigation is complete, there are generally three 
    issues that can be resolved using ADR; whether a violation occurred, 
    the appropriate enforcement action, and the appropriate corrective 
    actions for the violation(s). If the parties agree, any or all three 
    may be considered in an ADR session.
        Two different types of enforcement cases will be eligible for ADR 
    after an investigation is complete, discrimination and other wrongdoing 
    cases. ADR will normally be considered at three places in the 
    enforcement process after OI has completed an investigation: (1) After 
    an enforcement panel has concluded there is the need to continue 
    pursuing potential enforcement action based on an OI case and prior to 
    the conduct of a predecisional enforcement conference (PEC); (2) after 
    the initial enforcement action is taken, typically a Notice of 
    Violation (NOV) and potentially a proposed civil penalty; and (3) after 
    imposition of a civil penalty and prior to a hearing request.
        The parties to an ADR session after an OI investigation is complete 
    will be the licensee and the NRC. Fees associated with the neutral will 
    be divided between the NRC and the licensee, each paying half of the 
    total cost.
        Settlement discussions are expected to be complete within 90 days 
    of initiating ADR prior to a PEC. The NRC may withdraw from settlement 
    discussions if negotiations have not completed in a timely manner.
    
    [[Page 21171]]
    
        The terms of a settlement agreement will normally be confirmed by 
    order. Typically, the specific terms of settlement will be agreed to 
    during the negotiation. The staff will then incorporate appropriate 
    terms into a confirmatory order, a draft of which will then be agreed 
    to by the licensee prior to issuance.
        If an attempt to resolve a case using ADR prior to the conduct of a 
    PEC fails, a predecisional enforcement conference will normally be 
    offered to the licensee. The PEC will be conducted as described in the 
    Enforcement Policy.
        For cases within the scope of the pilot program, after a panel 
    concludes that a case warrants continuation of the enforcement process, 
    the responsible region or office will contact the licensee and offer 
    either a PEC or ADR. Consistent with the Enforcement Policy, a written 
    response could be offered at the staff's discretion.
        Public notification of the settlement will normally be a press 
    release and the confirmatory order will be published in the Federal 
    Register.
        Confidentiality with the NRC as a party will be determined by the 
    parties as allowed by the ADR Act.
    1. Discrimination Cases
        Consistent with centralization of the discrimination enforcement 
    process, the Director, Office of Enforcement, will normally negotiate 
    for the NRC.
        Normally the NRC will coordinate participation of the complainant. 
    While the complainant will not be a party to the ADR process after OI 
    issues an investigation report, the NRC will typically seek the 
    complainant's input to the process. Normally, the NRC will at least 
    seek input from the complainant regarding suggested corrective actions 
    aimed at improving the safety conscious work environment.
        OI reports (not including exhibits) will normally be provided to 
    the licensee when the choice of ADR or a PEC is offered.
        A licensee may request ADR for discrimination violations based 
    solely on a finding by DOL. However, the staff will not negotiate the 
    finding by DOL. The appropriate enforcement sanction and corrective 
    actions will be the typical focus of settlement discussions.
    2. Other Than Discrimination Wrongdoing
        The regional administrator will normally be the principal 
    negotiator for the NRC in ADR sessions on other wrongdoing cases. After 
    imposition of a civil penalty or other order, the Director, Office of 
    Enforcement and applicable regional administrator may determine that 
    the Director would be the appropriate negotiator.
        Typically, an enforcement panel will be conducted to discuss the 
    NRC's specific interests in the case prior to the regional 
    administrator attending the settlement discussions. A limited review of 
    the settlement terms may be conducted in conjunction with the 
    preparation of the confirmatory order.
        The OI report will not routinely be offered to the licensee prior 
    to ADR. However, the OI report may be provided, as necessary, during 
    the negotiations with the licensee.
    
    IV. Integration With Traditional Enforcement Policy
    
    A. Potential Future Enforcement Actions Civil Penalty Assessments
    
        Section VI.C.2 of the Enforcement Policy provides the method for 
    determination of a civil penalty amount. One aspect of the 
    determination uses enforcement history as a factor. If the staff 
    considers a civil penalty for a future escalated enforcement action, 
    settlements under the enforcement ADR program occurring after a formal 
    enforcement action is taken (e.g. an NOV is issued) will count as an 
    enforcement case for purposes of determining whether identification 
    credit is considered. Settlements occurring prior to an OI 
    investigation will not count as previous enforcement. The status of 
    settlement agreements occurring after an investigation is completed but 
    prior to an NOV being issued will be established as part of the 
    negotiation between the parties.
    
        Dated at Rockville, Maryland, this 14th day of April, 2004.
        For the Nuclear Regulatory Commission.
    Annette L. Vietti-Cook,
    Secretary of the Commission.
    [FR Doc. 04-8872 Filed 4-19-04; 8:45 am]
    BILLING CODE 7590-01-P
    
    
    

Document Information

Published:
04/20/2004
Department:
Nuclear Regulatory Commission
Entry Type:
Notice
Action:
Request for comments on pilot program.
Document Number:
04-8872
Dates:
Submit comments on or before May 20, 2004.
Pages:
21166-21171 (6 pages)
PDF File:
04-8872.pdf