[Federal Register Volume 69, Number 76 (Tuesday, April 20, 2004)]
[Notices]
[Pages 21166-21171]
From the Federal Register Online via the Government Printing 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: SECY@nrc.gov. 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: CAG@nrc.gov).
    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 pdr@nrc.gov.
    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 ndh@nrc.gov.

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

[[Page 21168]]

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.

[[Page 21169]]

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