Proposed Revision of the NRC Enforcement Policy, 59374-59376 [E5-5578]

Download as PDF 59374 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Notices Affected Public: Business or other forprofit; Not-for-profit institutions; and State, Local, or Tribal Government. Number of Respondents: 83,462. Annual Responses: 83,462. Average Response Time: Approximately 110 hours. Estimated Annual Burden Hours: 9,223,921. Total Annualized capital/startup costs: $0. Total Annual Costs (operating/ maintaining systems or purchasing. services): $110,607. Description: Recordkeeping and reporting requirements incurred by Federal contractors under Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and Section 4212 of the Vietnam Era Veterans’ Readjustment Act are necessary to substantiate compliance with nondiscrimination and affirmative action requirements enforced by the ESA’s Office of Contract Compliance Programs. Darrin A. King, Acting Departmental Clearance Officer. [FR Doc. 05–20386 Filed 10–11–05; 8:45 am] BILLING CODE 4510–CM–P DEPARTMENT OF LABOR Mine Safety and Health Administration Petitions for Modification The following parties have filed petitions to modify the application of existing safety standards under section 101(c) of the Federal Mine Safety and Health Act of 1977. 1. Genwal Resources, Inc. [Docket No. M–2005–064–C] Genwal Resources, Inc., P.O. Box 1077, Price, Utah 84501 has filed a petition to modify the application of 30 CFR 75.901 (Protection of low- and medium-voltage three-phase circuits used underground) to its South Crandall Canyon Mine (MSHA I.D. No. 42– 02356) located in Emery County, Utah. The petitioner requests a modification of the existing standard to permit an alternative method of compliance for the grounding of a diesel generator. The petitioner proposes to use a portable diesel generator for utility power and to move electrically powered mobile and stationary equipment throughout the mine. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard. VerDate Aug<31>2005 19:48 Oct 11, 2005 Jkt 208001 2. Black Stallion Coal Company [Docket No. M–2005–065–C] Black Stallion Coal Company, 500 Lee Street, P.O. Box 1189, Charleston, West Virginia 25324 has filed a petition to modify the application of 30 CFR 75.900 (Low- and medium-voltage circuits serving three-phase alternating current equipment; circuit breakers) to its Black Stallion Mine (MSHA I.D. No. 46– 09086) located in Boone County, West Virginia. The petitioner proposes to use the circuit breaker required in 30 CFR 75.900 for short circuit protection only. The contactor will be equipped to provide under-voltage, grounded phase protection, and other protective functions normally provided by the contactor. The petitioner has listed specific terms and conditions in this petition for modification that will be followed when the proposed alternative method is implemented. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard. 3. San Juan Coal Company [Docket No. M–2005–066–C] San Juan Coal Company, P.O. Box 561, Waterflow, New Mexico 87421 has filed a petition to modify the application of 30 CFR 75.503 (Permissible electric face equipment; maintenance) and 30 CFR 18.35(a)(5)(i) (Portable (trailing) cables and cords) to its San Juan South Underground Mine (MSHA I.D. No. 29–02170) located in San Juan County, New Mexico. The petitioner requests a modification of the existing standard to permit a higher maximum length on trailing cables for the three-phase, 995-volt continuous mining machine, 995-volt roof bolting machine, 995-volt auxiliary fan and 995volt breaker. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard. Request for Comments Persons interested in these petitions are encouraged to submit comments via Federal eRulemaking Portal: http:// www.regulations.gov; E-mail: zzMSHAComments@dol.gov; Fax: (202) 693– 9441; or Regular Mail/Hand Delivery/ Courier: Mine Safety and Health Administration, Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209. All comments must be postmarked or received in that office on or before November 14, 2005. Copies of these petitions are available for inspection at that address. PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 Dated: October 5, 2005. Rebecca J. Smith, Acting Director, Office of Standards, Regulations, and Variances. [FR Doc. 05–20448 Filed 10–11–05; 8:45 am] BILLING CODE 4510–43–P MORRIS K. UDALL SCHOLARSHIP AND EXCELLENCE IN NATIONAL ENVIRONMENTAL POLICY FOUNDATION Sunshine Act Meetings 9 a.m. to 12 p.m., Friday, November 4, 2005. PLACE: The offices of the Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation, 130 South Scott Avenue, Tucson, AZ 85701. STATUS: This meeting will be open to the public, unless it is necessary for the Board to consider items in executive session. MATTERS TO BE CONSIDERED: (1) A report on the U.S. Institute for Environmental Conflict Resolution; (2) A report from the Udall Center for Studies in Public Policy; (3) A report on the Native Nations Institute; (4) Program Reports; and (5) A Report from the Management Committee. PORTIONS OPEN TO THE PUBLIC: All sessions with the exception of the session listed below. PORTIONS CLOSED TO THE PUBLIC: Executive session CONTACT PERSON FOR MORE INFORMATION: Christopher L. Helms, Executive Director, 130 South Scott Avenue, Tucson, AZ 85701, (520) 670–5529. TIME AND DATE: Dated: October 6, 2005. Christopher L. Helms, Executive Director, Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation, and Federal Register Liaison Officer. [FR Doc. 05–20493 Filed 10–7–05; 10:10am] BILLING CODE 6820–FN–M NUCLEAR REGULATORY COMMISSION Proposed Revision of the NRC Enforcement Policy Nuclear Regulatory Commission. ACTION: Policy statement: Notification of proposed revision. AGENCY: SUMMARY: The Nuclear Regulatory Commission (NRC) is considering a revision to its Enforcement Policy E:\FR\FM\12OCN1.SGM 12OCN1 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Notices (Policy), Supplement VII, to change the criteria considered when determining the Severity Level of violations of the NRC’s employee protection regulations. DATES: Comments on this proposed revision to the NRC Enforcement Policy may be submitted on or before December 12, 2005. The staff’s disposition of comments will be documented, and made available on the NRC Web site. 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 nrcrep@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: Robert Fretz, Office of Enforcement, Nuclear Regulatory Commission, Washington, DC 20555–0001, (301) 415– 1980, e-mail (RXF@nrc.gov) or Maria Schwartz, Office of Enforcement, Nuclear Regulatory Commission, Washington, DC 20555–0001, (301) 415– 2742, e-mail (MES@nrc.gov). SUPPLEMENTARY INFORMATION: On April 14, 2000, the Executive Director for Operations chartered a Discrimination Task Group (DTG) to evaluate the NRC’s handling of employee discrimination cases. The DTG’s report, ‘‘Policy Options and Recommendations for Revising the NRC’s Process for Handling Discrimination Issues,’’ was forwarded to the Commission as an attachment to SECY–02–0166, dated September 12, 2002. Among other recommendations, the DTG recommended changing the Severity Level criteria for violations of the Commission’s Employee Protection Regulations to include additional factors when applying Severity Levels. On March 26, 2003, the Commission issued a Staff Requirements Memorandum (SRM) on SECY–02–0166 approving the recommendations of the DTG as revised by the Senior Management Review Team. The Commission approved, without comment, the DTG recommendation regarding Severity Level criteria. The staff is now proposing to change the Enforcement Policy in response to the Commission’s direction in its SRM on SECY–02–0166. VerDate Aug<31>2005 19:48 Oct 11, 2005 Jkt 208001 The primary goals of enforcement in the discrimination area are to deter licensees and individuals from taking adverse actions against employees for engaging in protected activities, and to ensure that there is a work environment that allows employees to feel free to raise concerns. As a result, the Severity Levels assigned to a particular act of discrimination should be graded based on factors that promote these goals. In addition to these goals, the proposed revision to Supplement VII of the Enforcement Policy would improve the effectiveness of the NRC’s enforcement program by allowing the staff to more appropriately assess the significance of discrimination violations. The Enforcement Policy currently categorizes the Severity Level of a discrimination violation solely by the level of the manager in the organization who initiated or approved the adverse action. For example, a violation of an employee protection regulation attributed to a senior corporate manager would normally result in a Severity Level I violation whereas a violation attributed to a mid-level manager or first-line supervisor would normally result in a Severity Level II or III violation, respectively. The DTG recommended that Supplement VII of the Enforcement Policy be revised in the discrimination area to account for other factors in addition to the level of the manager. The proposed changes to the Severity Level factors would allow the NRC staff to further consider: (1) The severity of the adverse action (e.g., monetary effect, downgrade of position, involuntary transfer from a supervisory to non-supervisory position, and negative appraisal comments); (2) potential site or organizational impact of the adverse action; (3) failure by licensee or contractor or subcontractor management to followup on a discrimination complaint; and (4) whether or not the adverse action was taken because an employee came to the NRC or other government agency with a concern. The NRC staff will continue to consider the aspect of willfulness on the part of the individual taking the adverse action in accordance with Section IV.A.4 of the Enforcement Policy when assessing the significance of the violation. The proposed revision incorporates the use of several terms not currently used in Supplement VII, including tangible adverse action, mid-level manager, and site or organizational impact. These terms, as used in the proposed revision to Supplement VII, are defined below. A tangible adverse action is that action that had an actual, negative effect PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 59375 on an employee. Tangible adverse actions include, but are not limited to, negative monetary effects (e.g., job termination, and failure to receive a routine annual pay increase or bonus), demotion or arbitrary downgrade of a position, transfer to a position that is recognized to have a lesser status (e.g., from a supervisory to a non-supervisory position), and an overall performance appraisal downgrade. Adverse actions that are not considered ‘‘tangible’’ include a negative comment in a performance appraisal, that had no effect on the overall appraisal grade or visible impact on the employee, or a letter of reprimand or counseling which subsequently did not have a negative effect on an employee’s position or compensation. These adverse actions would be considered less severe and typically would not be considered for escalated enforcement. The impact or consequences of the tangible adverse action would be considered when making a Severity Level determination. For example, a substantial monetary action, such as termination or job demotion, would generally be considered a significant tangible adverse action and could result in a Severity Level I or II violation. Whereas, an overall performance appraisal downgrade or action that had a lesser monetary effect (e.g., reduced bonus) would not be considered a significant tangible adverse action and, thus, could result in a Severity Level II or III violation. A mid-level manager is, in most cases, considered to be a manager below the level of a senior manager (typically a vice-president or above) or owner of a company but above a first line supervisor. For large organizations, such as power reactor licensees with several levels of management, mid-level management may actually encompass several levels of management below the level of senior manager. Similarly, in a large organization, for purposes of Severity Level determination, a second level supervisor, such as a general foreman in a maintenance organization, may be most appropriately grouped with first line supervision. Conversely, smaller companies, such as radiography or well logging licensees, may only have one or two levels of management, all of which would be considered at least mid-level. For discrimination cases involving non-licensee contractors or subcontractors, the NRC may choose to exercise discretion in determining the severity level of a violation by taking into account the contract manager’s position within the contractor’s organization and the relation of that E:\FR\FM\12OCN1.SGM 12OCN1 59376 Federal Register / Vol. 70, No. 196 / Wednesday, October 12, 2005 / Notices position to licensed activities. In discrimination cases where an adverse action was initiated or approved by mid-level management within the organization but the specific manager cannot be identified, the Severity Level determination will consider the action taken as though a specific individual manager was identified. For example, during the course of an otherwise legitimate reduction in force, an employee is subject to the layoff, at least in part, due to engaging in a protected activity. In this example, a panel of midlevel managers approves the list of employees affected by the layoff, including the employee wrongly laid off, but no single mid-level manager is specifically identified as responsible for the adverse action. Therefore, Severity Level consideration would be based, in part, on mid-level management involvement. Potential site or organizational impact is the negative impact on the work environment that could occur if the adverse action is conspicuous and widely known to other employees. The NRC recognizes that this would be the most subjective of the proposed severity level factors and that precise criteria would likely be difficult to establish. Therefore, the NRC anticipates that this factor will only be used when the adverse action is clearly widely-known. Widely-known actions which could affect the organization by affecting the work environment for other employees include, for example, those actions that result in an individual being absent from the workplace, as a result of a termination, suspension, or relocation of work space. Adverse actions involving performance appraisals do not typically result in an employee’s absence and may not necessarily be known by other employees. Therefore, actions related to such things as performance appraisals would not typically be considered widely-known under this factor, unless evidence suggests otherwise. Although not specifically included as a severity level factor in the proposed revision, the NRC notes that the threat of an adverse action is also considered to constitute an adverse action because the threat affects the terms and conditions of employment, thereby affecting the work environment. The NRC recognizes, however, that the threat of an adverse action does not have the same consequences to an individual as an actual tangible adverse action. Under the proposed revision, a SL II violation, for example, could be appropriate, if a mid-level manager threatened to terminate an employee and the threat had widespread site or VerDate Aug<31>2005 19:48 Oct 11, 2005 Jkt 208001 organizational impact, i.e., was widelyknown among employees. Accordingly, the proposed revision to the NRC Enforcement Policy, Supplement VII, reads as follows: NRC Enforcement Policy * * * * * Supplement VII—Miscellaneous Matters * * * * * A. Severity Level I—Violations Involving for Example * * * * * 4. Employee Discrimination in violation of 10 CFR 50.7, or similar regulations, by a senior corporate officer or manager involving a significant tangible adverse action (e.g., substantial monetary action, such as termination or job demotion). B. Severity Level II—Violations Involving for Example * * * * * 4. Employee Discrimination in violation of 10 CFR 50.7, or similar regulations where a tangible adverse action (e.g., an actual, negative effect on an employee, such as denial of training, lower performance rating, or denial of a small, routine annual pay increase) was taken or approved by a senior manager; or violations in which at least two of the following factors apply: (a) The adverse action was approved by at least a mid-level manager (e.g., a manager above a first-line supervisor) or at a level within the organization corresponding to a mid-level manager (in those cases where the specific midlevel manager cannot be identified); or (b) The adverse action was tangible and significant (e.g., substantial monetary action, such as termination or job demotion); or (c) The adverse action was widelyknown; or (d) The adverse action was taken because an employee came to the NRC or other government agency with a concern; or (e) The licensee, contractor or subcontractor’s management failed to followup on a discrimination complaint made by one of its own employees or the licensee’s management failed to followup on a discrimination complaint made to the licensee by a contractor or subcontractor employee. A. Severity Level III—Violations Involving for Example * * * * * 5. Employee Discrimination in violation of 10 CFR 50.7, or similar regulations where at least one of the following factors apply: PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 (a) The adverse action was approved by at least a mid-level manager (e.g., a manager above a first-line supervisor) or at a level within the organization corresponding to a mid-level manager (in those cases where the specific midlevel manager cannot be identified); or (b) The adverse action was tangible (e.g., an actual, negative effect on an employee, such as a denial of a small, routine annual pay increase, denial of training, or lower performance rating); or (c) The adverse action was widelyknown; or (d) The adverse action was taken because an employee came to the NRC or other government agency with a concern; or (e) The licensee, contractor or subcontractor’s management failed to followup on a discrimination complaint made by one of its own employees or the licensee’s management failed to followup on a discrimination complaint made to the licensee by a contractor or subcontractor employee. D. Severity Level IV—Violations Involving for Example * * * * * 7. Employee Discrimination in violation of 10 CFR 50.7, or similar regulations which, in itself, does not warrant a Severity Level III categorization. Dated at Rockville, MD, this 27th day of September, 2005. For the Nuclear Regulatory Commission. Michael R. Johnson, Director, Office of Enforcement. [FR Doc. E5–5578 Filed 10–11–05; 8:45 am] BILLING CODE 7590–01–P NUCLEAR REGULATORY COMMISSION Sunshine Federal Register Notice Weeks of October 10, 17, 24, 31, November 7, 14, 2005. PLACE: Commissioners’ Conference Room, 11555 Rockville Pike, Rockville, Maryland. STATUS: Public and Closed. MATTERS TO BE CONSIDERED: DATES: Week of October 10, 2005 There are no meetings scheduled for the Week of October 10, 2005. Week of October 17, 2005—Tentative Tuesday, October 18, 2005 9:30 a.m.—Briefing on Decommissioning Activities and Status (Public Meeting) (Contact: Dan Gillen, 301–415–7295). E:\FR\FM\12OCN1.SGM 12OCN1

Agencies

[Federal Register Volume 70, Number 196 (Wednesday, October 12, 2005)]
[Notices]
[Pages 59374-59376]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-5578]


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NUCLEAR REGULATORY COMMISSION


Proposed Revision of the NRC Enforcement Policy

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement: Notification of proposed revision.

-----------------------------------------------------------------------

SUMMARY: The Nuclear Regulatory Commission (NRC) is considering a 
revision to its Enforcement Policy

[[Page 59375]]

(Policy), Supplement VII, to change the criteria considered when 
determining the Severity Level of violations of the NRC's employee 
protection regulations.

DATES: Comments on this proposed revision to the NRC Enforcement Policy 
may be submitted on or before December 12, 2005. The staff's 
disposition of comments will be documented, and made available on the 
NRC Web site.

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 nrcrep@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: Robert Fretz, Office of Enforcement, 
Nuclear Regulatory Commission, Washington, DC 20555-0001, (301) 415-
1980, e-mail (RXF@nrc.gov) or Maria Schwartz, Office of Enforcement, 
Nuclear Regulatory Commission, Washington, DC 20555-0001, (301) 415-
2742, e-mail (MES@nrc.gov).

SUPPLEMENTARY INFORMATION: On April 14, 2000, the Executive Director 
for Operations chartered a Discrimination Task Group (DTG) to evaluate 
the NRC's handling of employee discrimination cases. The DTG's report, 
``Policy Options and Recommendations for Revising the NRC's Process for 
Handling Discrimination Issues,'' was forwarded to the Commission as an 
attachment to SECY-02-0166, dated September 12, 2002. Among other 
recommendations, the DTG recommended changing the Severity Level 
criteria for violations of the Commission's Employee Protection 
Regulations to include additional factors when applying Severity 
Levels. On March 26, 2003, the Commission issued a Staff Requirements 
Memorandum (SRM) on SECY-02-0166 approving the recommendations of the 
DTG as revised by the Senior Management Review Team. The Commission 
approved, without comment, the DTG recommendation regarding Severity 
Level criteria. The staff is now proposing to change the Enforcement 
Policy in response to the Commission's direction in its SRM on SECY-02-
0166.
    The primary goals of enforcement in the discrimination area are to 
deter licensees and individuals from taking adverse actions against 
employees for engaging in protected activities, and to ensure that 
there is a work environment that allows employees to feel free to raise 
concerns. As a result, the Severity Levels assigned to a particular act 
of discrimination should be graded based on factors that promote these 
goals. In addition to these goals, the proposed revision to Supplement 
VII of the Enforcement Policy would improve the effectiveness of the 
NRC's enforcement program by allowing the staff to more appropriately 
assess the significance of discrimination violations.
    The Enforcement Policy currently categorizes the Severity Level of 
a discrimination violation solely by the level of the manager in the 
organization who initiated or approved the adverse action. For example, 
a violation of an employee protection regulation attributed to a senior 
corporate manager would normally result in a Severity Level I violation 
whereas a violation attributed to a mid-level manager or first-line 
supervisor would normally result in a Severity Level II or III 
violation, respectively. The DTG recommended that Supplement VII of the 
Enforcement Policy be revised in the discrimination area to account for 
other factors in addition to the level of the manager. The proposed 
changes to the Severity Level factors would allow the NRC staff to 
further consider: (1) The severity of the adverse action (e.g., 
monetary effect, downgrade of position, involuntary transfer from a 
supervisory to non-supervisory position, and negative appraisal 
comments); (2) potential site or organizational impact of the adverse 
action; (3) failure by licensee or contractor or subcontractor 
management to followup on a discrimination complaint; and (4) whether 
or not the adverse action was taken because an employee came to the NRC 
or other government agency with a concern. The NRC staff will continue 
to consider the aspect of willfulness on the part of the individual 
taking the adverse action in accordance with Section IV.A.4 of the 
Enforcement Policy when assessing the significance of the violation.
    The proposed revision incorporates the use of several terms not 
currently used in Supplement VII, including tangible adverse action, 
mid-level manager, and site or organizational impact. These terms, as 
used in the proposed revision to Supplement VII, are defined below.
    A tangible adverse action is that action that had an actual, 
negative effect on an employee. Tangible adverse actions include, but 
are not limited to, negative monetary effects (e.g., job termination, 
and failure to receive a routine annual pay increase or bonus), 
demotion or arbitrary downgrade of a position, transfer to a position 
that is recognized to have a lesser status (e.g., from a supervisory to 
a non-supervisory position), and an overall performance appraisal 
downgrade. Adverse actions that are not considered ``tangible'' include 
a negative comment in a performance appraisal, that had no effect on 
the overall appraisal grade or visible impact on the employee, or a 
letter of reprimand or counseling which subsequently did not have a 
negative effect on an employee's position or compensation. These 
adverse actions would be considered less severe and typically would not 
be considered for escalated enforcement.
    The impact or consequences of the tangible adverse action would be 
considered when making a Severity Level determination. For example, a 
substantial monetary action, such as termination or job demotion, would 
generally be considered a significant tangible adverse action and could 
result in a Severity Level I or II violation. Whereas, an overall 
performance appraisal downgrade or action that had a lesser monetary 
effect (e.g., reduced bonus) would not be considered a significant 
tangible adverse action and, thus, could result in a Severity Level II 
or III violation.
    A mid-level manager is, in most cases, considered to be a manager 
below the level of a senior manager (typically a vice-president or 
above) or owner of a company but above a first line supervisor. For 
large organizations, such as power reactor licensees with several 
levels of management, mid-level management may actually encompass 
several levels of management below the level of senior manager. 
Similarly, in a large organization, for purposes of Severity Level 
determination, a second level supervisor, such as a general foreman in 
a maintenance organization, may be most appropriately grouped with 
first line supervision. Conversely, smaller companies, such as 
radiography or well logging licensees, may only have one or two levels 
of management, all of which would be considered at least mid-level.
    For discrimination cases involving non-licensee contractors or 
subcontractors, the NRC may choose to exercise discretion in 
determining the severity level of a violation by taking into account 
the contract manager's position within the contractor's organization 
and the relation of that

[[Page 59376]]

position to licensed activities. In discrimination cases where an 
adverse action was initiated or approved by mid-level management within 
the organization but the specific manager cannot be identified, the 
Severity Level determination will consider the action taken as though a 
specific individual manager was identified. For example, during the 
course of an otherwise legitimate reduction in force, an employee is 
subject to the layoff, at least in part, due to engaging in a protected 
activity. In this example, a panel of mid-level managers approves the 
list of employees affected by the layoff, including the employee 
wrongly laid off, but no single mid-level manager is specifically 
identified as responsible for the adverse action. Therefore, Severity 
Level consideration would be based, in part, on mid-level management 
involvement.
    Potential site or organizational impact is the negative impact on 
the work environment that could occur if the adverse action is 
conspicuous and widely known to other employees. The NRC recognizes 
that this would be the most subjective of the proposed severity level 
factors and that precise criteria would likely be difficult to 
establish. Therefore, the NRC anticipates that this factor will only be 
used when the adverse action is clearly widely-known. Widely-known 
actions which could affect the organization by affecting the work 
environment for other employees include, for example, those actions 
that result in an individual being absent from the workplace, as a 
result of a termination, suspension, or relocation of work space. 
Adverse actions involving performance appraisals do not typically 
result in an employee's absence and may not necessarily be known by 
other employees. Therefore, actions related to such things as 
performance appraisals would not typically be considered widely-known 
under this factor, unless evidence suggests otherwise.
    Although not specifically included as a severity level factor in 
the proposed revision, the NRC notes that the threat of an adverse 
action is also considered to constitute an adverse action because the 
threat affects the terms and conditions of employment, thereby 
affecting the work environment. The NRC recognizes, however, that the 
threat of an adverse action does not have the same consequences to an 
individual as an actual tangible adverse action. Under the proposed 
revision, a SL II violation, for example, could be appropriate, if a 
mid-level manager threatened to terminate an employee and the threat 
had widespread site or organizational impact, i.e., was widely-known 
among employees.
    Accordingly, the proposed revision to the NRC Enforcement Policy, 
Supplement VII, reads as follows:

NRC Enforcement Policy

* * * * *

Supplement VII--Miscellaneous Matters

* * * * *
A. Severity Level I--Violations Involving for Example
* * * * *
    4. Employee Discrimination in violation of 10 CFR 50.7, or similar 
regulations, by a senior corporate officer or manager involving a 
significant tangible adverse action (e.g., substantial monetary action, 
such as termination or job demotion).
B. Severity Level II--Violations Involving for Example
* * * * *
    4. Employee Discrimination in violation of 10 CFR 50.7, or similar 
regulations where a tangible adverse action (e.g., an actual, negative 
effect on an employee, such as denial of training, lower performance 
rating, or denial of a small, routine annual pay increase) was taken or 
approved by a senior manager; or violations in which at least two of 
the following factors apply:
    (a) The adverse action was approved by at least a mid-level manager 
(e.g., a manager above a first-line supervisor) or at a level within 
the organization corresponding to a mid-level manager (in those cases 
where the specific mid-level manager cannot be identified); or
    (b) The adverse action was tangible and significant (e.g., 
substantial monetary action, such as termination or job demotion); or
    (c) The adverse action was widely-known; or
    (d) The adverse action was taken because an employee came to the 
NRC or other government agency with a concern; or
    (e) The licensee, contractor or subcontractor's management failed 
to followup on a discrimination complaint made by one of its own 
employees or the licensee's management failed to followup on a 
discrimination complaint made to the licensee by a contractor or 
subcontractor employee.
A. Severity Level III--Violations Involving for Example
* * * * *
    5. Employee Discrimination in violation of 10 CFR 50.7, or similar 
regulations where at least one of the following factors apply:
    (a) The adverse action was approved by at least a mid-level manager 
(e.g., a manager above a first-line supervisor) or at a level within 
the organization corresponding to a mid-level manager (in those cases 
where the specific mid-level manager cannot be identified); or
    (b) The adverse action was tangible (e.g., an actual, negative 
effect on an employee, such as a denial of a small, routine annual pay 
increase, denial of training, or lower performance rating); or
    (c) The adverse action was widely-known; or
    (d) The adverse action was taken because an employee came to the 
NRC or other government agency with a concern; or
    (e) The licensee, contractor or subcontractor's management failed 
to followup on a discrimination complaint made by one of its own 
employees or the licensee's management failed to followup on a 
discrimination complaint made to the licensee by a contractor or 
subcontractor employee.
D. Severity Level IV--Violations Involving for Example
* * * * *
    7. Employee Discrimination in violation of 10 CFR 50.7, or similar 
regulations which, in itself, does not warrant a Severity Level III 
categorization.

    Dated at Rockville, MD, this 27th day of September, 2005.

    For the Nuclear Regulatory Commission.
Michael R. Johnson,
Director, Office of Enforcement.
[FR Doc. E5-5578 Filed 10-11-05; 8:45 am]
BILLING CODE 7590-01-P