Imposition of Civil Penalty on Contractors and Subcontractors Who Discriminate Against Employees for Engaging in Protected Activities, 1233-1234 [E7-25629]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 73, Number 4 (Monday, January 7, 2008)]
[Notices]
[Pages 1233-1234]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-25629]


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NUCLEAR REGULATORY COMMISSION


Imposition of Civil Penalty on Contractors and Subcontractors Who 
Discriminate Against Employees for Engaging in Protected Activities

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy Statement: Revision.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is revising its 
Enforcement Policy to include contractors and subcontractors of a 
licensee against whom the Commission may impose a civil penalty for 
discriminating against employees for engaging in protected activities.

DATES: Effective date: This action is effective February 6, 2008. 
Comment date: Comments on this revision should be submitted by March 7, 
2008. The Commission will apply the modified Policy to violations that 
occur after the effective date.

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, MD 20852, 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 20852. 
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 ``About NRC'', ``Organization and 
Functions'', ``Office of Enforcement'', ``About Enforcement'', then 
``Enforcement Policy''.

FOR FURTHER INFORMATION CONTACT: Doug Starkey, Office of Enforcement, 
U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; Telephone 
(301) 415-3456; e-mail drs@nrc.gov.

SUPPLEMENTARY INFORMATION: The Commission amended 10 CFR 30.7, 40.7, 
50.7, 52.5, 60.9, 61.9, 63.9, 70.7, 71.9, 72.10 and 76.7 to clarify the 
Commission's authority to impose civil penalties on contractors and 
subcontractors for violations of Commission employee protection 
requirements. The changes to the Enforcement Policy hereunder 
incorporate the recent clarifying revisions set forth in the referenced 
employee protection regulations.

Paperwork Reduction Act

    This final change to the NRC Enforcement Policy does not contain 
new or amended information collection requirements subject to the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.).

Public Protection Notification

    If a means used to impose an information collection does not 
display a currently valid OMB control number, the NRC may not conduct 
or sponsor, and a person is not required to respond to, the information 
collection.

Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement 
Fairness Act of 1996, the NRC has determined that this action is not a 
``major'' rule and has verified this determination with the Office of 
Information and Regulatory Affairs, Office of Management and Budget.
    Accordingly, the NRC Enforcement Policy is amended to read as 
follows:
General Statement of Policy and Procedure for NRC Enforcement Actions
* * * * *

I. Introduction and Purpose

* * * * *
Footnote 1
    This policy primarily addresses the activities of NRC licensees and 
applicants for NRC licenses. However, this policy provides for taking 
enforcement action against non-licensees and individuals in certain 
cases. These non-licensees include contractors and subcontractors, 
holders of, or applicants for, NRC approvals, e.g., certificates of 
compliance, early site permits, or standard design certificates, and 
the employees of these non-licensees. Specific guidance regarding 
enforcement action against individuals and non-licensees is addressed 
in Sections VII, VIII and X.
* * * * *

VI. Enforcement Actions

* * * * *
C. Civil Penalty
    A civil penalty is a monetary penalty that may be imposed for 
violation of (1) certain specified licensing provisions of the Atomic 
Energy Act or supplementary NRC rules or orders; (2) any requirement 
for which a license may be revoked; or (3) reporting requirements under 
section 206 of the Energy Reorganization Act. Civil penalties are 
designed to deter future violations both by the involved licensee, 
contractor, subcontractor or other person and other licensees, 
contractors, subcontractors or other persons, conducting similar 
activities. Civil penalties also emphasize the need for licensees, 
contractors, subcontractors and other persons to identify violations 
and take prompt comprehensive corrective action.
* * * * *

VII. Exercise of Discretion

* * * * *
B. Mitigation of Enforcement Sanctions
* * * * *
5. Violations Involving Certain Discrimination Issues
    Enforcement discretion may be exercised for discrimination cases 
when a licensee (including a contractor or subcontractor) who, without 
the need for government intervention, identifies an issue of 
discrimination and takes prompt, comprehensive, and effective 
corrective action to address both the particular situation and the 
overall work environment for raising safety concerns. Similarly, 
enforcement may not be warranted where a complaint is filed with the 
Department of Labor (DOL) under Section 211 of the Energy 
Reorganization Act of 1974, as amended, but the licensee settles the 
matter before the DOL makes an initial finding of discrimination and 
addresses the overall work environment. Alternatively, if a finding of 
discrimination is made, the licensee may choose to settle the case 
before the evidentiary hearing begins. In such

[[Page 1234]]

cases, the NRC may exercise its discretion not to take enforcement 
action when the licensee has addressed the overall work environment for 
raising safety concerns and has publicized that a complaint of 
discrimination for engaging in protected activity was made to the DOL, 
that the matter was settled to the satisfaction of the employee (the 
terms of the specific settlement agreement need not be posted), and 
that, if the DOL Area Office found discrimination, the licensee has 
taken action to positively reemphasize that discrimination will not be 
tolerated. Similarly, the NRC may refrain from taking enforcement 
action if a licensee settles a matter promptly after a person comes to 
the NRC without going to the DOL. Such discretion would normally not be 
exercised in cases in which the licensee does not appropriately address 
the overall work environment (e.g., by using training, postings, 
revised policies or procedures, any necessary disciplinary action, 
etc., to communicate its policy against discrimination) or in cases 
that involve: Allegations of discrimination as a result of providing 
information directly to the NRC; allegations of discrimination caused 
by a manager above first-line supervisor (consistent with current 
Enforcement Policy classification of Severity Level I or II 
violations); allegations of discrimination where a history of findings 
of discrimination (by the DOL or the NRC) or settlements suggests a 
programmatic rather than an isolated discrimination problem; or 
allegations of discrimination which appear particularly blatant or 
egregious.
    Generally, the NRC holds licensees responsible for maintaining 
control and oversight of their contractor and subcontractor activities. 
As such, in cases involving licensee contractors and subcontractors, 
the NRC will typically take enforcement action against a licensee for 
violations arising out of the acts of its contractor or subcontractor. 
In addition, enforcement action (including a civil penalty) may be 
taken against the licensee contractor or subcontractor. On occasion, 
however, circumstances may arise where the NRC may refrain from taking 
enforcement action or imposing a civil penalty against a licensee even 
though it takes enforcement action or issues a civil penalty, against 
the licensee contractor or subcontractor.
* * * * *

    Dated at Rockville, Maryland, this 28th day of December, 2007.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
 [FR Doc. E7-25629 Filed 1-4-08; 8:45 am]
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