[Federal Register Volume 69, Number 156 (Friday, August 13, 2004)]
[Notices]
[Pages 50219-50223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18509]
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[NUREG-1600]
NRC Enforcement Policy; Alternative Dispute Resolution
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement: revision.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) is
publishing a revision to its Enforcement Policy (NUREG-1600, ``General
Statement of Policy and Procedures for NRC Enforcement Action) to
include an interim enforcement policy regarding the use of Alternative
Dispute Resolution (ADR) in the enforcement program for discrimination
and other wrongdoing cases.
The Commission published a proposed pilot program to address the
use of ADR in the enforcement program in the Federal Register (69 FR
21166) on April 20, 2004. The Commission received input from the
public, in response to 69 FR 21166, expressing their support for the
pilot program and providing comments.
DATES: The ADR process will be implemented in a phased approach.
Because only the licensee and the NRC are involved in ADR after an OI
investigation is complete, the staff will begin offering the
opportunity to engage in ADR during the post investigation enforcement
process upon issuance in the Federal Register. The staff will begin
offering early ADR to whistleblowers who have established a prima facie
case of discrimination approximately 30 days after the issuance of the
Federal Register notice. The additional delay will allow the staff to
complete the development of a brochure providing additional information
regarding ADR in general and the NRC's program in particular. Comments
on this revision to the Enforcement Policy may be submitted on or
before September 13, 2004.
ADDRESSES: Submit written comments to: Michael T. Lesar, Chief, Rules
and Directives Branch, Division of Administrative Services, Office of
Administration, Mail Stop: T6D59, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001. Hand deliver comments to: 11555 Rockville
Pike, Rockville, Maryland, between 7:30 a.m. and 4:15 p.m., Federal
workdays. Copies of comments received may be examined at the NRC Public
Document Room, Room O1F21, 11555 Rockville Pike, Rockville, MD. You may
also e-mail comments to [email protected].
FOR FURTHER INFORMATION CONTACT: Nick Hilton, Senior Enforcement
Specialist, Office of Enforcement, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, (301) 415-3055, e-mail [email protected].
SUPPLEMENTARY INFORMATION: The NRC received 11 sets of comments in
response to the proposed pilot program published in the Federal
Register on April 20, 2004. All of the commentors were either power
reactor licensees or representatives of power reactor licensees. All
commentors supported the pilot program with most offering that the
comments provided either clarification opportunities or thoughts for
future consideration after the pilot has operated for a period of time.
The comments are available in their entirety on the Office of
Enforcement's ADR Web page at http://www.nrc.gov/what-we-do/regulatory/enforcement/adr.html#comments.
The following is a synopsis of stakeholder comments received
regarding the proposed ADR pilot program and the NRC response to the
suggested changes.
Comment: The NRC should reconsider the treatment of an ADR
settlement occurring after a formal enforcement action is taken (e.g.,
a notice of violation (NOV) is issued) as a factor in determining a
future escalated enforcement (civil penalty) amount. The proposed
Interim Enforcement Policy on the use of ADR stated that settlements
occurring after a formal enforcement action is taken will count as an
enforcement case for purposes of determining whether identification
credit is considered when assessing the amount of a civil penalty.
Response: The NRC would allow the status of a particular case being
mediated to be negotiated during the dispute resolution session.
Therefore, to allow greater flexibility, the NRC revised Section IV.A
of the interim policy to state that, ``settlements under the
enforcement ADR program occurring after a formal enforcement action is
taken (e.g. an NOV is issued) may count as an enforcement case for
purposes of determining whether identification credit is considered''
(emphasis added).
Comment: A press release should not be issued for those cases where
an agreed upon settlement is reached through ADR after the Office of
Investigations (OI) completes its investigation given that a
confirmatory order is made public for such cases.
Response: A press release is standard agency practice when issuing
an order. In many cases, the public may be aware of the issue through
previous news articles for cases that had a proposed civil penalty,
documents contained in ADAMS, the Federal Register, or OE Web page. The
press release will serve to publically close out the issue, and
increase the acceptance and public confidence in the ADR process.
Comment: The policy should be flexible enough to allow for a
cooling off period prior to attempting to resolve the dispute through
ADR without impacting the 90-day time frame for Early ADR.
Response: The process of notifying the NRC, establishing a prima
facie case, agreeing to mediate, choosing a mediator, and scheduling
the mediation session should be of sufficient duration to allow both
parties an ample cooling off period. One purpose of the NRC program is
to achieve a timely resolution. A delay in the implementation of the
process may also put undue pressure on the employee due to the
Department of Labor (DOL) timeliness requirements, lengthen potential
unemployment time, etc.
Comment: An OI investigation or enforcement action should not be
initiated if a settlement between the parties has been reached in
principle.
Response: In Early ADR, the case is not referred to OI until after
the neutral returns the case back to the NRC. However, a settlement is
expected to be reached and signed within 90 days from when the parties
agree to attempt ADR. The NRC may allow a small extension to the 90-day
limit to allow for completion of a settlement agreement.
Comment: The NRC should monitor the ADR process to ensure it is not
abused by employees since the process could create an artificial
incentive for employee's to seek ADR for a claim of discrimination
during the pilot program.
Response: Prior to entering into ADR, an employee must articulate,
and an Allegation Review Board must then determine that, a prima facie
case exists. In addition, a licensee's involvement in ADR is voluntary.
If a licensee believes that the other party is attempting to abuse the
ADR process, they do not have to agree to participate. The NRC
[[Page 50220]]
will also periodically assess the program in order to correct any
problems such as abuse.
Comment: The policy should be explicit in that a settlement reached
among the parties without the aid of a neutral will have the same
effect as a settlement reached with the help of a neutral. Further, no
OI investigation or enforcement should occur in any cases where a
settlement or resolution has been reached through ADR.
Response: A minor change was made to the interim policy to reflect
that notification to the NRC that a settlement has been reached must be
made prior to initiation of an investigation. This was implicit in the
proposed policy. Section III.A states that ``If notified of the
settlement, the NRC will review the settlement for restrictive
agreements * * * assuming no such restrictive agreements exist, the NRC
will not investigate or take enforcement action.''
However, for those cases where a settlement agreement between the
whistleblower and the licensee or contractor is reached after the
initiation of an OI investigation or late in the DOL process
enforcement action will be considered. If the NRC believes enforcement
is appropriate, the licensee or contractor would be able to request ADR
with the NRC to discuss the appropriate enforcement sanctions and
corrective actions.
Comment: Settlement documents submitted to the NRC for review need
not include names of individuals, numerical financial terms, or other
information that would reveal specific personnel information and
actions. Further, an unsigned, proposed settlement agreement
constitutes a draft document, and should be withheld from public
disclosure under the same confidentiality provisions that govern the
ADR process in general.
Response: As part of the Early ADR portion of the program, signed
and completed settlement documents are to be submitted to the NRC in
their final form for review. As noted in the proposed interim policy,
these documents are treated consistent with the allegation program
procedures. As such, the settlement agreements will not routinely be
made public. If requested under the Freedom of Information Act, a
settlement agreement would be redacted as appropriate. The program does
not contemplate that draft agreements will be submitted to the NRC in
early ADR.
Comment: OI reports should be provided to licensees in other
wrongdoing cases in additional to discrimination cases.
Response: This issue is outside of the ADR pilot program. The staff
requirements memorandum (SRM) for SECY 02-0166, dated March 26, 2003,
directed the NRC staff (staff) to release OI reports prior to a
predecisional enforcement conference (PEC) for cases involving
discrimination. This SRM does not apply to other wrongdoing cases.
However, as the NRC gains experience with the release of OI reports for
discrimination cases, the staff may consider recommending to the
Commission that OI reports be released for other wrongdoing cases.
Comment: DOL should inform complainants of NRC's Early ADR process
to ensure that such individuals, who may not have contacted the NRC,
are made aware of the Early ADR process.
Response: The NRC has no authority over the DOL process. Requesting
the DOL to discuss the NRC's ADR program could suggest that the NRC
does not support employee's use of the DOL process. Also, experience
indicates that individuals are more likely to come to the NRC and DOL,
or the NRC alone, than they are to go to the DOL alone.
The staff has had informal discussions with the Occupational Safety
and Health Administration (OSHA), and plans to have additional
discussions with OSHA management regarding the NRC's Enforcement Policy
in more detail. This will include discussions regarding the option for
whistleblowers to enter into the NRC's Early ADR process.
In addition, individuals will be made aware of the availability of
the ADR process through various means including the Federal Register
and the NRC public web site. Other means of publicizing the process are
also being considered. In addition, licensees are free to settle with
individuals using licensee sponsored programs to resolve NRC or DOL
issues.
Staff comment: While preparing to implement the pilot program, the
NRC staff identified that additional flexibility is needed regarding
who performs administrative or intake neutral functions.
Response: Section II.A of the interim policy was revised to allow
flexibility for the staff to use Office Allegation Coordinators or a
third party organization to serve as intake neutrals who would assist
the parties in resolving the dispute. As a result of this revision,
conforming changes were also made to Sections II.A, II.B.5, and II.B.6.
Paperwork Reduction Act
This policy statement does not contain new or amended information
collection requirements 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 (OMB), 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 in not required to
respond to, 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 had determined that this action is not a
major rule and has verified this determination with the Office of
Information and Regulatory Affairs of OMB.
Accordingly, the NRC Enforcement Policy amended by including the
Interim Enforcement Policy Regarding the use of Alternate Dispute
Resolution in the Enforcement Program reads as follows:
General Statement of Policy and Procedure for NRC Enforcement Actions
Table of Contents
* * * * *
Interim Enforcement Policies
* * * * *
Interim Enforcement Policy Regarding Enforcement Discretion for Certain
Fire Protection Issues (10 CFR 50.48)
* * * * *
Interim Enforcement Policy Regarding the Use of Alternative Dispute
Resolution
* * * * *
Interim Enforcement Policies
* * * * *
Interim Enforcement Policy Regarding Enforcement Discretion for Certain
Fire Protection Issues (10 CFR 50.48)
* * * * *
Interim Enforcement Policy Regarding the Use of Alternative Dispute
Resolution
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.
[[Page 50221]]
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.
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 may 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 may serve as an intake
neutral who develops information and processes the necessary
information for mediation under Early ADR. The OAC has the option to
refer the whistleblower to the third party neutral to process the
necessary information for mediation under Early ADR. The
confidentiality provisions in Section II.B.7 will apply to the OAC,
third party intake neutral, 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 or third party neutral 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 or third
party neutral. The OAC will initiate discussion of the option to
mediate and process the necessary documentation. Subsequently, for post
investigation ADR, the program administrator or third party neutral
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 or third party intake neutral, 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 safety conscious work environment (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. 574; 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
[[Page 50222]]
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 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 prior to initiation of an
investigation, the NRC will review the settlement for restrictive
agreements potentially in violation of 10 CFR 50.7(f), or other,
similar regulations. 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) or other NRC regulations 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 an 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
[[Page 50223]]
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
typically be divided between the NRC and the licensee, with 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 been completed in a timely manner.
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) may 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 6th day of August, 2004.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 04-18509 Filed 8-12-04; 8:45 am]
BILLING CODE 7590-01-P