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

Agencies

• NUCLEAR REGULATORY COMMISSION

[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.

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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 
https://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]
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