[Federal Register Volume 80, Number 42 (Wednesday, March 4, 2015)]
[Notices]
[Pages 11693-11695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-04490]
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[NRC-2013-0046]
Scope Expansion of the Post-Investigation Alternative Dispute
Resolution Program
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy revision; issuance.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing a
revision to its Enforcement Policy (Enforcement Policy or Policy) to
incorporate Commission direction to add escalated non-willful
(traditional) enforcement cases with the potential for civil penalties
within the scope of the Commission's Alternative Dispute Resolution
Program and to make other conforming edits.
DATES: This revision to the Enforcement Policy is effective March 4,
2015.
ADDRESSES: Please refer to Docket ID NRC-2013-0046 when contacting the
NRC about the availability of information for this action. You may
obtain publicly-available information related to this action by any of
the following methods:
Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2013-0046. Address
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions, contact
the individuals listed in the FOR FURTHER INFORMATION CONTACT section
of this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly-available documents online in the
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS,
please contact the NRC's Public Document Room (PDR) reference staff at
1-800-397-4209, 301-415-4737, or by email to [email protected]. The
ADAMS accession number for each document referenced (if it is available
in ADAMS) is provided the first time that it is mentioned in the
SUPPLEMENTARY INFORMATION section.
NRC's PDR: You may examine and purchase copies of public
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852.
FOR FURTHER INFORMATION CONTACT: Daniel Lenehan, telephone: 301-415-
3501, email: [email protected], or Shahram Ghasemian, telephone:
301-415-3591, email: [email protected]; both of the Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001.
SUPPLEMENTARY INFORMATION:
Background
The Administrative Dispute Resolution Act of 1996 authorizes and
encourages the use of Alternative Dispute Resolution (ADR) procedures
by Federal agencies. The term ``ADR'' refers to a number of voluntary
processes, such as mediation and facilitated dialogues that can be used
to assist parties in resolving disputes and potential conflicts. These
techniques involve the use of a neutral third party, either from within
the agency or from outside the agency, and are voluntary processes in
terms of the decision to participate and the content of the final
agreement. The NRC's experience with ADR has demonstrated that the use
of these techniques can result in more efficient resolution of issues,
more effective outcomes, and improved relationships between the agency
and other parties. The NRC established the ADR Program in its Office of
Enforcement in 2004.
Since the implementation of the ADR Program, the NRC has reached
settlement agreements with licensees (or contractors) and individuals,
and has issued subsequent ADR confirmatory orders in more than 90
enforcement cases. The parties to ADR in the NRC's enforcement program
are the NRC staff and, in most cases, a licensee. The proceedings are
conducted using the facilitation skills of a trained independent
mediator. Mediation allows the NRC staff and the licensee to
communicate openly and directly and enables the parties to reach
effective and workable agreements that meet the NRC's regulatory
interests. Historically,
[[Page 11694]]
the ADR Program has resulted in broader and more comprehensive
corrective actions than would be expected using traditional enforcement
means.
On December 16, 2010, then NRC Chairman, Gregory Jaczko, issued a
memorandum, ``ADR Implementation and Assessment'' (ADAMS Accession No.
ML12030A228) tasking the NRC staff to conduct a comprehensive review of
the ADR Program, including determining if it should be expanded. At the
time the ADR Program was limited to cases involving discrimination and
other wrong doing. On September 6, 2011, the NRC issued a notice in the
Federal Register that solicited nominations of individuals to
participate on a panel to discuss ADR Program implementation and
whether changes could be made to make it more effective, transparent,
and efficient (76 FR 55136). On October 17, 2011, the NRC issued
another Federal Register notice that announced its intention to hold a
public meeting to solicit feedback from its stakeholders on the ADR
Program (76 FR 64124). During the public meeting, which was held on
November 8, 2011, external NRC stakeholders expressed support for the
expansion of the ADR Program to the extent possible.
In Commission Paper SECY-12-0161, ``Status Update, Tasks Related to
Alternative Dispute Resolution in the Allegation and Enforcement
Programs,'' dated November 28, 2012 (ADAMS Accession No. ML12321A145),
the NRC staff notified the Commission of its intent to pilot the
expansion of the ADR Program to include escalated non-willful
(traditional) enforcement cases with proposed civil penalties for a 1-
year period. The expansion of the program did not include violations
associated with findings assessed through the Reactor Oversight
Process.
During the pilot period, the NRC staff made ADR available for seven
escalated non-willful (traditional) enforcement cases with proposed
civil penalties however, none of the licensees chose ADR. The licensees
included a waste disposal facility, two radiographers, a gauge user,
two hospitals, and one non-operating (decommissioned) reactor. However,
shortly after the 1-year period, a power reactor licensee chose to
engage in ADR for an escalated non-willful (traditional) enforcement
case with the potential for a civil penalty. The subsequent mediation
resulted in a settlement, specified in the Confirmatory Order, under
which the licensee agreed to fleet-wide actions as opposed to plant-
specific actions that would have typically been expected from using the
traditional enforcement process.
In Commission Paper SECY-14-0077, ``Status Update and Proposed
Policy Revision: Tasks Related to Alternative Dispute Resolution in the
Enforcement Program,'' dated July 30, 2014 (ADAMS Accession No.
ML14143A363), the NRC staff recommended that the Commission approve
expanding the scope of the ADR Program to include non-willful
(traditional) enforcement cases with the potential for civil penalties
(not including violations associated with findings assessed through the
Reactor Oversight Process).
In the Staff Requirements Memorandum to SECY-14-007, the Commission
approved the expansion of the ADR Program. Accordingly, the NRC is
revising Section 2.4.3, ``Alternate Dispute Resolution,'' of the
Enforcement Policy to add escalated non-willful (traditional)
enforcement cases with the potential for civil penalties within the
scope of the program and to make other conforming edits.
Revisions to Enforcement Policy
The text of revised section 2.4.3, in its entirety, follows. A
marked copy of the Enforcement Policy is available in ADAMS under
Accession No. ML15028A422.
2.4.3 Alternative Dispute Resolution
The Administrative Dispute Resolution Act of 1996 (ADRA) authorizes
and encourages the use of Alternative Dispute Resolution (ADR)
procedures by Federal agencies. ADR refers to a variety of processes
that emphasize creative, cooperative approaches to handling conflicts
in lieu of adversarial procedures. Mediation is the form of ADR
typically used by the U.S. Nuclear Regulatory Commission (NRC). The use
of ADR in the NRC's enforcement program is available for cases
involving discrimination and other wrongdoing as well as escalated
nonwillful (traditional) enforcement cases with the potential for civil
penalties (not including violations associated with findings assessed
through the Reactor Oversight Process).
ADR may also be used for discrimination violations based solely on
a finding by DOL; however, the NRC will not negotiate the DOL finding.
Individuals within the Commission's jurisdiction may also be offered
ADR. ADR complements, and works in conjunction with, the traditional
NRC enforcement process. ADR may be offered (1) before a predecisional
enforcement conference (PEC), (2) after the initial enforcement action
is taken (i.e., an NOV or proposed imposition of a civil penalty), or
(3) with the imposition of a civil penalty and prior to a hearing
request. Use of the ADR program is voluntary for all parties, including
the NRC; any participant may end the process at any time. Mediation
activities are kept confidential in accordance with 5 U.S.C. 574;
however, the terms of the settlement agreement are normally formalized
in a Confirmatory Order, which is published in the Federal Register.
Normally, there is also a press release providing information about the
settlement agreement.
In some circumstances, it may not be appropriate for the NRC to
engage in ADR (e.g., the U.S. Department of Justice has substantial
involvement in the case, cases in which the subject matter is such that
a Confirmatory Order detailing the terms of a settlement agreement
cannot be made public, or other particularly egregious cases in which
the public interest is not served by engaging in ADR). The approval of
the Director, OE, is required in those cases where the staff proposes
not to offer ADR.
Additional information concerning the NRC's ADR program is
available in the NRC Enforcement Manual and on the NRC Web site.
In addition, an individual and his or her employer (or former
employer) can use ADR to resolve discrimination complaints (under
Section 211 of the ERA) before the initiation of investigative
activities by OI (i.e., pre-investigation ADR, commonly referred to as
``early ADR'') (see NRC Management Directive 8.8, ``Management of
Allegations'') or a licensee-sponsored ADR program that is similar in
nature to the NRC's early ADR program. If the parties reach a
settlement agreement using early ADR or licensee-sponsored ADR, the NRC
subsequently reviews the agreement to ensure that it does not include
any provisions in violation of the NRC's ``Employee Protection''
regulations. If no such restrictive provisions exist, the NRC will not
investigate the discrimination complaint or take enforcement action.
Congressional Review Act
This policy revision is a rule as defined in the Congressional
Review Act (5 U.S.C. 801-808). However, the Office of Management and
Budget has not found it to be a major rule as defined in the
Congressional Review Act.
Dated at Rockville, Maryland, this 26th day of February, 2015.
[[Page 11695]]
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2015-04490 Filed 3-3-15; 8:45 am]
BILLING CODE 7590-01-P