This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

12295 

Vol. 76, No. 44 

Monday, March 7, 2011 

1The NRC can take an enforcement action, 

including orders and civil penalties, against 

licensees, applicants, or contractors or 

subcontractors of licensees or applicants who 

violate Section 50.7 and may do so because the 

Atomic Energy Act of 1954 authorizes the NRC to 

prohibit employee discrimination that is based on 

protected activity, 42 U.S.C. 2201(c) and (o), 2133, 

2236(a), and provides broad authority for the NRC 

to protect workers against retaliation for raising 

safety concerns. Union Electric Co. (Callaway Plant, 

Units 1&2), ALAB–527, 9 NRC 126 (1979). 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 50 

[Docket No. PRM–50–92; NRC–2008–0492] 

James Luehman; Denial of Petition for 

Rulemaking 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Petition for rulemaking; denial. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC or the Commission) 

is denying a petition for rulemaking 

(PRM) submitted by James Luehman 

(the petitioner). The petitioner requests 

that the NRC amend the NRC’s standard 

for sustaining a whistleblower 

retaliation violation of the Employee 

Protection Rule. The NRC is denying 

PRM–50–92 for the reasons stated in 

this document. 

ADDRESSES: Publicly available 

documents related to this petition for 

rulemaking may be accessed using the 

following methods: 

• NRC’s Public Document Room 

(PDR): The public may examine and 

have copied, for a fee, publicly available 

documents at the NRC’s PDR, Room O1– 

F21, One White Flint North, 11555 

Rockville Pike, Rockville, Maryland 

20852. 

• NRC’s Agencywide Documents 

Access and Management System 

(ADAMS): Publicly available documents 

created or received at the NRC are 

available electronically at the NRC’s 

Electronic Reading Room at http:// 

www.nrc.gov/reading-rm/adams.html. 

From this page, the public can gain 

entry into ADAMS, which provides text 

and image files of the NRC’s public 

documents. If you do not have access to 

ADAMS or if there are problems in 

accessing the documents located in 

ADAMS, contact the NRC PDR reference 

staff at 1–800–397–4209, 301–415–4737, 

or by e-mail to pdr.resource@nrc.gov. 

• Federal Rulemaking Web Site: 

Supporting materials related to this 

petition for rulemaking can be found at 

http://www.regulations.gov by searching 

on Docket ID: NRC–2008–0492. Address 

questions about NRC dockets to Carol 

Gallagher, telephone: 301–492–3668; 

e-mail: Carol.Gallagher@nrc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Sexton, Office of the General 

Counsel, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555– 

0001, telephone: 301–415–1151; e-mail: 

Kimberly.Sexton@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

The Petition 

Title 10 of the Code of Federal 

Regulations (10 CFR) § 2.802, ‘‘Petition 

for Rulemaking,’’ provides an 

opportunity for any interested person to 

petition the Commission to issue, 

amend, or rescind any regulation and on 

June 26, 2008, the petitioner submitted 

a PRM requesting that the NRC amend 

10 CFR 50.7, ‘‘Employee Protection.’’ 

Section 50.7 prohibits discrimination by 

an NRC licensee, among others, against 

an employee for engaging in certain 

protected activities.1 This regulation is 

commonly known as a ‘‘whistleblower’’ 

protection provision. Similar provisions 

are found in 10 CFR parts 19, 30, 40, 52, 

60, 61, 63, 70, 71, 72, and 76. 

The legal standard by which the NRC 

determines whether a violation of 

Section 50.7 has occurred was decided 

by the Commission in the Tennessee 

Valley Authority (Watts Bar Nuclear 

Plant, Unit 1; Sequoyah Nuclear Plant, 

Units 1 and 2; Browns Ferry Nuclear 

Plant, Units 1, 2, and 3), CLI–04–24, 60 

NRC 160 (2004) (TVA) enforcement 

proceeding. In TVA, the Commission 

held that in evaluating whether a 

violation of Section 50.7 has occurred, 

licensing boards must address two 

questions: 

1. Did the NRC Staff show, by a 

preponderance of the evidence, that 

protected activity was a ‘‘contributing factor’’ 

in an unfavorable personnel action? 

2. Did the employer show, by ‘‘clear and 

convincing evidence,’’ that it would have 

taken the same personnel action regardless of 

the protected activity? 

TVA, CLI–04–24, 60 NRC at 194. 

These two questions were adapted by 

the Commission from Section 211 of the 

Energy Reorganization Act of 1974, as 

amended (ERA), 42 U.S.C. 5851. Section 

211 offers protection, through the U.S. 

Department of Labor (DOL), to 

employees who have been fired or 

otherwise discriminated against as a 

result of engaging in protected activities. 

S. Rep. No. 95–848, at 29 (1978). Under 

Section 211, to prove a violation, 

employees must demonstrate by a 

preponderance of the evidence that the 

protected activity ‘‘was a contributing 

factor in the unfavorable personnel 

action alleged in the complaint.’’ Relief 

to the employee, however, may not be 

granted if the employer can demonstrate 

‘‘by clear and convincing evidence that 

it would have taken the same 

unfavorable personnel action in the 

absence of such behavior.’’ Public Law 

102–486, Section 2902(d), 106 Stat. 

2776, 3123–24 (amending 42 U.S.C. 

5851(b)). 

The petitioner’s proposed new 

regulatory standard would allow the 

NRC, in evaluating the evidence, to 

conclude that a whistleblower 

retaliation violation has occurred 

without regard to whether the licensee 

has demonstrated by clear and 

convincing evidence that it would have 

taken the same unfavorable personnel 

action in the absence of protected 

activity. Thus, the petitioner’s proposed 

approach would apply the clear and 

convincing evidentiary standard not to 

the question of whether a violation has 

occurred but to the determination of the 

sanction to be imposed for the violation. 

The petitioner requests that the NRC 

amend its standard for sustaining a 

whistleblower retaliation violation of 

the Employee Protection Rule based on 

two asserted changes in circumstance 

reflecting that a departure from TVA is 

now needed. First, the petitioner states 

that there is sufficient anecdotal 

evidence to suggest that the 

Commission’s TVA decision may be 

having an adverse effect on how 

potential filers of complaints view NRC 

handling of discrimination cases, as 

well as how such cases are being 

evaluated by the NRC staff. The 

petitioner cites as evidence ‘‘a 

significant recent decline in the number 

of discrimination allegations submitted 

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2Before the Licensing Board, the staff argued that 

‘‘[t]he appropriate standard to apply in a section 

50.7 violation case is whether the Staff has proven 

by a preponderance of the evidence that the 

complainant’s protected activity was a contributing 

factor in an unfavorable personnel action. The 

Board should not consider whether the employer 

can demonstrate by clear and convincing evidence 

that it would have taken the same action in the 

absence of the complainant’s protected activity. A 

section 50.7 violation is based on the employer’s 

actual motives; if one of the employer’s motives for 

taking the adverse action was the complainant’s 

protected activity, the employer has violated 

section 50.7.’’ ‘‘NRC Staff Pretrial Legal Brief’’ (Mar. 

1, 2002) (ADAMS Accession No. ML020660033). 

The staff maintained its position before the 

Commission on appeal. ‘‘NRC Staff’s Brief in 

Response to CLI–03–10 Regarding Standards by 

Which a Licensing Board Should Mitigate a Civil 

Penalty in a Discrimination Case’’ (Oct. 2, 2003) 

(ADAMS Accession No. ML032820036). 

as well as a decline in the percentage of 

discrimination allegations that were 

determined to meet the threshold for 

investigation.’’ Second, the petitioner 

states that because of the probable new 

construction of power reactors under 10 

CFR part 52 and the Department of 

Energy’s application for a high-level 

waste repository, a clarification of the 

Employee Protection Rule is necessary. 

In support of this request, the 

petitioner provides eight arguments for 

changing the Commission ruling in 

TVA. Each of the arguments is described 

below. 

The petitioner first argues that the 

addition of the clear and convincing test 

in effect raises the standard for 

concluding a violation exists from a 

preponderance of the evidence 

(meaning that it is more likely than not 

that a violation occurred) to a higher 

standard of ‘‘somewhere between 

preponderance [of the evidence] and 

clear and convincing [evidence].’’ 

Accordingly, the petitioner views TVA 

as making it more difficult to prove a 

violation of the Employee Protection 

Rule. The petitioner argues that the legal 

requirements of Section 50.7 of the 

Employee Protection Rule and Section 

211 of the ERA are satisfied by the lesser 

standard of evidence, i.e. when it is 

shown by a preponderance of the 

evidence that discrimination was ‘‘a 

contributing factor’’ in the adverse 

action against the employee. The 

petitioner states that the licensee may 

raise the defense that clear and 

convincing evidence demonstrates it 

would have taken the same unfavorable 

personnel action in the absence of 

protected activity only as a defense in 

the sanction determination process, not 

as a defense to the question of whether 

a violation has occurred. 

Second, the petitioner states that the 

additional clear and convincing test 

identified in TVA directly conflicts with 

the present language of Section 50.7(d). 

That provision provides that adverse 

actions taken by an employer, or others, 

against an employee may be predicated 

upon nondiscriminatory grounds and 

that an employee’s engagement in 

protected activities does not 

automatically render him or her 

immune from discharge or discipline for 

legitimate reasons or from adverse 

action dictated by nonprohibited 

considerations. The petitioner argues 

that TVA changed the application of 

Section 50.7(d) such that ‘‘the 

prohibition against discrimination now 

applies, if and only if, the employer is 

unable to show by clear and convincing 

evidence that the adverse action would 

have been taken in absence of the 

protected activity.’’ The petitioner 

believes this ‘‘will cause and in fact may 

now be causing some number of people 

to not enter the process given the 

reduced chances of success.’’ 

The petitioner’s third, fourth, and 

fifth arguments essentially state that the 

clear and convincing test does not exist 

in Section 211 of the ERA for the 

determination of a violation and thus 

should not be used by the NRC for that 

purpose. The petitioner cites the 

decision of an NRC Atomic Safety and 

Licensing Board (Licensing Board) in 

Tennessee Valley Authority, LBP–03– 

10, 57 NRC 553 (2003) as support for 

modifying the Section 50.7 Employee 

Protection Rule so that the ‘‘clear and 

convincing’’ question is considered in 

the sanction determination process, not 

in determining whether a violation has 

occurred . 

Sixth, the petitioner states that there 

is a possibility of an inconsistent 

regulatory message if the DOL finds a 

violation of Section 211 of the ERA but 

the NRC does not find a violation of the 

Employee Protection Rule of Section 

50.7 for the same set of underlying facts. 

Seventh, the petitioner states that the 

Commission’s decision in TVA could 

cause employees to fear retaliation 

because TVA demonstrates ‘‘that some 

amount of retaliation is in fact 

acceptable.’’ 

Finally, the petitioner states that the 

test established in TVA is not necessary 

to ensure that the staff appropriately 

applies the Section 50.7 Employee 

Protection Rule. 

The NRC reviewed the request for 

rulemaking and determined that the 

request met the minimum sufficiency 

requirements of 10 CFR 2.802 and 

therefore was considered as a petition 

for rulemaking. Accordingly, the NRC 

docketed the request as PRM–50–92 on 

July 9, 2008. The NRC notified the 

petitioner of this decision by letter 

dated July 15, 2008. Due to this PRM’s 

primary focus on the continued viability 

of a Commission adjudicatory decision, 

it was deemed a legal matter and thus, 

the NRC did not prepare a notice of 

receipt and request for comment, and 

instead began consideration of the 

request. 

Background 

In TVA, the NRC staff issued an 

$110,000.00 Order Imposing Civil 

Monetary Penalty to the Tennessee 

Valley Authority for its non-selection of 

an employee to a competitive position 

due, in part, to that employee’s having 

engaged in protected whistleblowing 

activities. Tennessee Valley Authority, 

LBP–03–10, 57 NRC 553. The Tennessee 

Valley Authority did not deny that the 

employee had engaged in protected 

activities; however, it stated that the 

employee’s non-selection was made 

solely for legitimate business reasons 

and requested a hearing on the 

imposition of the penalty. After a 25-day 

evidentiary hearing, the Licensing Board 

determined that the Tennessee Valley 

Authority violated Section 50.7 based 

solely on a standard of ‘‘whether the 

Staff can prove by a preponderance of 

the evidence that the complainant’s 

protected activity was a contributing 

factor in an adverse action.’’ Having 

found a violation, the Licensing Board 

then reduced the civil penalty to 

$44,000.00 because of ‘‘the small role 

that protected activities may have 

played in leading to the adverse action.’’ 

The Tennessee Valley Authority 

appealed the Licensing Board’s ruling to 

the Commission. The Commission 

agreed to review the decision, and also 

raised its own question of whether the 

Licensing Board applied the correct 

legal evidentiary standard when 

determining whether to mitigate a civil 

penalty arising from a violation of the 

Employee Protection Rule. TVA, CLI– 

03–09, 58 NRC 39. On appeal, the 

Tennessee Valley Authority argued that 

the Licensing Board erred by not 

following the evidentiary framework 

established in discrimination cases like 

McDonnell Douglas Corp. v. Green, 411 

U.S. 792 (1973) and Price Waterhouse v. 

Hopkins, 490 U.S. 228 (1989). Id. at 190. 

The NRC staff, on the other hand, 

provided essentially the same argument 

as the petitioner does now, that it need 

only prove by a preponderance of the 

evidence that the complainant’s 

protected activity was a contributing 

factor in an unfavorable personnel 

action without looking to whether the 

employer would have taken the same 

action in the absence of the 

complainant’s protected activity.2

The Commission disagreed with the 

NRC staff and decided that it was 

appropriate for Licensing Boards in 

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3Ultimately, the Commission affirmed in part, 

and reversed in part, the Licensing Board’s Order, 

and remanded the case to the Licensing Board for 

further action. On November 10, 2004, the 

Licensing Board approved a settlement agreement 

between Tennessee Valley Authority and the NRC 

and terminated the proceedings. TVA, LBP–04–26, 

60 NRC 532 (2004). 

4 In fact, the staff argued this very same point to 

the Commission in the ‘‘NRC Staff Reply to Initial 

Briefs of the Tennessee Valley Authority and the 

Nuclear Energy Institute’’ (Nov. 3, 2003) (ADAMS 

Accession No. ML033240178), which the 

Commission directly rejected: ‘‘In practical terms, 

because we see few whistleblower enforcement 

adjudications at the NRC, because varying 

evidentiary frameworks are not necessarily 

outcome-determinative, and because the NRC’s 

general enforcement policy is to give deference to 

DOL’s whistleblower determinations, our 

disagreement with DOL on how to apply section 

211 in adjudications is unlikely to lead to 

inconsistent results between the agencies very 

often, if at all.’’ TVA, CLI–04–24, 60 NRC at 192. 

whistleblower discrimination cases to 

ask two questions, adapted from Section 

211 of the ERA, to determine whether a 

violation of 10 CFR 50.7 exists: 

1. Did the NRC Staff show, by a 

preponderance of the evidence, that 

protected activity was a ‘‘contributing factor’’ 

in an unfavorable personnel action? 

2. Did the employer show, by ‘‘clear and 

convincing evidence,’’ that it would have 

taken the same personnel action regardless of 

the protected activity? 

TVA, CLI–04–24, 60 NRC at 194. The 

Commission attempted to ‘‘make[] clear 

that engaging in protected activities 

does not immunize employees ‘from 

discharge or discipline for legitimate 

reasons or from adverse action dictated 

by non-prohibited considerations.’ ’’ Id. 

at 192–93. In establishing this test, the 

Commission believed that employers 

should be offered ‘‘the same right of 

defense in an NRC enforcement 

proceeding as Section 211 gives them in 

a Department of Labor compensation 

proceeding—i.e., the right to defend 

against a whistleblower discrimination 

charge on the ground that they would 

have taken the same personnel action 

regardless of the employee’s protected 

activities.’’ Id. at 192–193. The clear and 

convincing test dovetails with Section 

50.7(d) to provide that protection and 

while the Commission looked to, and 

tracked, Section 211’s evidentiary 

framework, it emphasized that Section 

50.7 does not adopt it. Id. at 194. 

The Commission also defined what 

constitutes a ‘‘contributing factor’’ in an 

adverse employment action. Although 

both parties in TVA agreed that Section 

211’s ‘‘contributing factor’’ causation 

standard should apply, the parties could 

not agree on what that standard entails. 

TVA, CLI–04–24, 60 NRC at 195. First, 

the Commission looked to 

Congressional intent. ‘‘Congress did not 

enact Section 211’s ‘contributing factor’ 

test in a vacuum,’’ but instead patterned 

it after similar whistleblower protection 

statutes in other industries. Id. at 196. 

Congressional intent in using the 

‘‘contributing factor’’ test in other 

industries evidenced a desire to lessen 

the burden on plaintiffs in making their 

case, and in turn to make it more 

difficult for defendants to avoid 

liability. Id. Thus, after looking to case 

law involving whistleblower statutes 

similar to Section 211, the Commission 

held that the correct questions to ask in 

determining whether the protected 

activity was a ‘‘contributing factor’’ in 

the adverse action was: whether the 

‘‘protected activity contributed ‘in any 

degree’ or played ‘at least some role’ in 

[the employer’s] personnel decisions’’ as 

opposed to whether it was a 

‘‘significant’’ or ‘‘motivating’’ factor. Id. at 

196–97. The Commission, however, was 

quick to point out that this is not a 

‘‘toothless’’ test: 

An employee may not simply engage in 

protected activities and expect immunity 

from future unfavorable personnel actions. 

Mere employer (or supervisor) knowledge of 

the protected activity does not suffice as a 

‘‘contributing factor;’’ nor does ‘‘the 

equivalent of adding ‘a drop of water into the 

ocean.’ ’’ The evidence, direct or indirect, 

must allow a reasonable person to infer that 

protected activities influenced the 

unfavorable personnel action to some degree. 

In cases where the evidence is weak, 

employers should be able to avoid liability by 

providing ‘‘clear and convincing evidence’’ 

that they would have taken the same 

personnel action anyway, based on nondiscriminatory grounds. 

Id. at 197. Therefore, finding a 

contributing factor does not necessarily 

end the analysis; ‘‘under section 211 

(and under analogous whistleblower 

laws) employers still may avoid liability 

if they show, by ‘clear and convincing 

evidence,’ that they would have taken 

the same unfavorable personnel action 

even in the absence of 

whistleblowing.’’ 3 Id. at 198. 

NRC Evaluation 

Within the context of the 

Commission’s TVA decision, the NRC 

has reviewed the petition and has 

decided to deny PRM–50–92. As stated 

above, in deciding TVA, the 

Commission had before it the NRC 

staff’s position as to the appropriate 

evidentiary standard under the 

Employee Protection Rule. The standard 

advocated by the staff in 2002 is 

fundamentally the same position now 

advocated by the petitioner. In 2004, 

when the Commission ruled in TVA, it 

explicitly elected an approach that is 

different from that proposed by the 

petitioner. In overturning the Licensing 

Board’s decision, and the standard 

advocated by the staff in TVA, the 

Commission fully considered the option 

of using the clear and convincing 

question solely in the sanction 

determination process, and chose not to 

elect this approach. Further, the 

Commission also considered, and 

dismissed, the possibility of an 

inconsistent regulatory message in 

TVA.4 Thus, the Commission’s 

approach in TVA was adopted with full 

knowledge of the position and 

arguments currently advocated by the 

petitioner. 

Contrary to the petitioner’s 

understanding, TVA did not raise the 

NRC staff’s burden of proving a 

violation to ‘‘somewhere between 

preponderance and clear and 

convincing.’’ The staff’s burden for 

proving retaliation is always 

preponderance of the evidence. Once 

the NRC staff meets its burden, the 

employer may proffer an affirmative 

defense by clear and convincing 

evidence, a higher standard for the 

employer to meet, that it would have 

taken the same personnel action 

anyway, regardless of the 

whistleblowing activity. The petitioner 

mistakenly treats the second part of the 

TVA test as a standard the NRC staff 

must refute to take enforcement action, 

rather than recognizing it as, in essence, 

an affirmative defense that the licensee 

may, but is not required to, address. 

Further, TVA does not establish that 

‘‘some amount of retaliation is in fact 

acceptable.’’ Instead, TVA states that if 

the protected activity affected or 

contributed to the adverse action ‘‘in any 

way,’’ ‘‘in any degree,’’ or ‘‘played ‘at 

least some role’,’’ the staff will satisfy 

the Commission’s ‘‘contributing factor’’ 

test. TVA, CLI–04–24, 60 NRC at 197. 

The staff does not have to show that the 

protected activity played a ‘‘significant,’’ 

‘‘motivating,’’ ‘‘substantial,’’ or 

‘‘predominant’’ factor in the adverse 

action. Id. But, the staff must show more 

than mere employer knowledge of the 

protected activity or the equivalent of 

adding a ‘‘drop of water into the ocean.’’ 

Id. 

The Commission recognized in 

establishing the two-part test that 

although the NRC staff may demonstrate 

by a preponderance of evidence that the 

contributing factor test is met ‘‘where 

the evidence is weak,’’ id. at 197, the 

Commission did not expect for the NRC 

staff to prevail in weak cases—only in 

those where the employer does not 

prove by a high standard of proof that 

it would have taken the same action 

absent protected activity. See id. at 192 

(‘‘In cases where the evidence is weak, 

employers should be able to avoid 

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5 ‘‘It is true that our whistleblower regulation, 

section 50.7, does not adopt the Section 211 

evidentiary paradigm as such, but neither does it 

adopt the McDonnell Douglas or Price Waterhouse 

paradigms. Our regulation is prohibitory, not 

procedural. It renders discriminatory conduct 

unlawful, but does not purport to prescribe 

evidentiary standards and approaches for use in 

NRC enforcement litigation.’’ 

6Third party claims are those discrimination 

claims that come to the NRC from an individual 

other than the employee who was allegedly 

discriminated against. 

7 2004 represents both: (1) The year when the 

Commission decided TVA and (2) the year that the 

interim program regarding the voluntary use of 

Alternative Dispute Resolution (ADR) in addressing 

discrimination complaints and other allegations of 

wrongdoing was adopted in the NRC’s Enforcement 

Policy. 8Refers to the number of discrimination claims 

for which either: (1) The NRC’s Office of 

Investigations (OI) reached a conclusion and (2) 

those that did not involve an OI investigation and 

were settled via early-ADR (or licensee-sponsored 

internal mediation) or in the DOL. 

9These numbers represent the number of cases 

settled either through early-ADR or in the DOL. 

However, the table does not reflect cases that 

involved DOL settlements between 1/1999 and 9/ 

2004 that also involved an OI case. For information 

only, those numbers are: 1999—10; 2000—7; 2001— 

7; 2002—3; 2003—9; and 2004—3. 

10These numbers represent the number of claims 

that did not meet the threshold prima facie 

determination, were withdrawn by the alleger, or 

came to the NRC as third-party claims. These 

numbers do not take into account that some of the 

open claims might eventually be found to not meet 

the prima facie determination or could be 

withdrawn by the alleger. 

liability by providing ‘clear and 

convincing evidence’ that they would 

have taken the same personnel action 

***’’). By contrast, in cases where the 

staff has stronger evidence that 

protected activity was a contributing 

factor, such as when a document or 

employer’s statements confirm an 

allegation of whistleblower 

discrimination, it would be unlikely 

that the employer could make its case 

by clear and convincing evidence that it 

would have taken the adverse action 

regardless. Thus, the Commission in 

TVA did not condone ‘‘some amount of 

retaliation’’; rather, it established the 

standards for determining the existence 

of whistleblower discrimination if a 

violation is challenged by an employer. 

In deciding TVA, the Commission 

looked to Section 211 for procedural 

guidance in applying Section 50.7 and 

generally adopted Section 211’s overall 

framework. Id. at 194. The Commission, 

however, is not required to follow 

Section 211’s evidentiary standard. Id. 

at 193–194.5 Section 211 establishes 

DOL’s authority to take action in cases 

involving whistleblower discrimination, 

id. at 194, but the NRC’s authority to 

regulate against employee 

discrimination is derived from the 

Atomic Energy Act of 1954. Therefore, 

Section 211 should not be construed as 

directing the NRC’s evidentiary 

approach. 

Further, contrary to the petitioner’s 

assertion, the discrimination data from 

1999–2009 do not appear to evidence 

any meaningful trends because the data 

fluctuates up and down during the years 

prior to and following TVA (2004); in 

some years since TVA, the number of 

discrimination claims filed is higher 

than in the years directly preceding 

TVA and in others that number is lower. 

Also, because the data does not 

differentiate claims failing to meet the 

threshold prima facie determination 

from those that were withdrawn by the 

alleger or came to the NRC as thirdparty claims,6 it is unknown whether 

there is any change in the percentage of 

discrimination allegations that were 

dismissed or withdrawn because they 

failed to meet the threshold for 

investigation, as the petitioner asserts. 

Calendar year 

1999 2000 2001 2002 2003 2004 7 2005 2006 2007 2008 2009 

TOTAL DISCRIMINATION CLAIMS ........... 139 144 108 97 96 97 118 88 84 94 116 

Total Claims Resolved/8% of Total Claims 91/65.5 91/63.2 75/69.4 55/56.7 70/72.9 75/77.3 73/61.9 37/42.0 52/61.9 34/36.2 10/8.6 

NRC Substantiated/% of Total Claims ........ 6/4.3 6/4.2 8/7.4 0/0 4/4.2 3/3.1 1/0.9 2/2.3 0/0 1/1.1 0/0 

NRC Not Substantiated/% of Total Claims 83/59.7 84/58.3 66/61.1 55/56.7 64/66.7 66/68.0 63/53.4 23/26.1 42/50.0 16/17.0 7/6.0 

Settlements/9% of Total Claims .................. 2/1.4 1/0.7 1/0.9 0/0 0/0 6/6.2 9/7.6 9/10.2 10/11.9 17/18.1 3/2.6 

Claims Still Open/% of Total Claims ........... 0/0 0/0 0/0 1/1.0 2/2.1 1/1.0 3/2.5 1/1.1 2/2.3 13/13.8 58/50.0 

Claims Not Warranting NRC Review/10% of 

Total Claims ............................................. 48/34.5 53/36.8 33/30.6 41/42.3 24/25.0 21/21.6 42/35.6 50/56.2 30/35.7 47/50.0 48/41.3 

*

The data contained in this table was obtained from the Allegation Management System. 

Finally, the TVA decision has had no 

effect on the way the NRC staff 

approaches or evaluates whistleblower 

discrimination claims. That is, the NRC 

staff continues to issue notices of 

violations of the Employee Protection 

Rule to licensees, applicants, and 

contractors or subcontractors of 

licensees and applicants based on its 

assessment as to whether the evidence 

shows that protected activity was a 

contributing factor in the adverse action, 

while also taking into consideration 

credible evidence that the employer 

would have taken the same personnel 

action regardless of the protected 

activity. 

Public Comments on the Petition 

Due to this PRM’s primary focus on 

the continued viability of a Commission 

adjudicatory decision, it was deemed a 

legal matter and thus, the NRC did not 

prepare a notice of receipt and request 

for comment, and instead began 

consideration of the request. 

Accordingly, there are no public 

comments on this petition. 

Determination of Petition 

For reasons cited above, the NRC is 

denying PRM–50–92. 

Dated at Rockville, Maryland, this 28th day 

of February 2011. 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. 2011–5053 Filed 3–4–11; 8:45 am] 

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14 CFR Part 71 

[Docket No. FAA–2010–1325; Airspace 

Docket No. 10–ASO–40] 

Proposed Amendment of Class E 

Airspace; Orangeburg, SC 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: This action proposes to 

amend Class E Airspace at Orangeburg, 

SC, to accommodate the additional 

airspace needed for the Standard 

Instrument Approach Procedures 

(SIAPs) developed for Orangeburg 

Municipal Airport. This action shall 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS