Federal Register / Vol. 69, No. 198 / Thursday, October 14, 2004 / Notices 61049

document will be available on the NRC 

home page site for 60 days after the 

signature date of this notice. 

Comments and questions about the 

information collection requirements 

may be directed to the NRC Clearance 

Officer, Brenda Jo. Shelton (T–5 F52), 

U.S. Nuclear Regulatory Commission, 

Washington, DC 20555–0001, by 

telephone at 301–415–7233, or by 

Internet electronic mail to 

INFOCOLLECTS@NRC.GOV.

Dated at Rockville, Maryland, this 6th day 

of October, 2004.

For the Nuclear Regulatory Commission. 

Brenda Jo. Shelton, 

NRC Clearance Officer, Office of the Chief 

Information Officer.

[FR Doc. 04–23006 Filed 10–13–04; 8:45 am] 

BILLING CODE 7590–01–P

NUCLEAR REGULATORY 

COMMISSION 

Proposed Generic Communication; 

Establishing and Maintaining a Safety 

Conscious Work Environment

AGENCY: Nuclear Regulatory 

Commission.

ACTION: Notice of opportunity for public 

comment. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission is proposing to issue a 

regulatory issue summary (RIS) to 

provide the guidance for licensees on 

establishing and maintaining a Safety 

Conscious Work Environment (SCWE): 

that is, an environment in which 

employees are encouraged to raise safety 

concerns both to their own management 

and to the NRC without fear of 

retaliation. The agency’s expectations 

regarding licensees establishing and 

maintaining a SCWE are described in 

the 1996 NRC Policy Statement, 

‘‘Freedom of Employees in the Nuclear 

Industry to Raise Safety Concerns 

Without Fear of Retaliation.’’

In a March 26, 2003 staff requirements 

memorandum, the Commission directed 

the staff to develop further guidance, in 

consultation with stakeholders, that 

identifies ‘‘best practices’’ to encourage 

a SCWE. The guidance document is 

based on the existing guidance provided 

in the 1996 Policy Statement, including 

the elements and attributes described 

therein of a healthy SCWE, and expands 

the guidance or adds new guidance 

where additional information would 

help describe practices to meet the 

intent of each SCWE attribute. In 

addition, the NRC staff held a public 

workshop to discuss the draft guidance 

document, on February 19, 2004. 

On February 12, 2004, the NRC staff 

published an outline of this guidance 

document for public comment. The 

Commission received input from the 

public, in response to the Federal 

Register Notice, expressing general 

agreement concerning the content of the 

outline. However, some improvements 

were suggested, and the NRC staff has 

incorporated many of these suggestions 

into the guidance document developed 

from the outline. The NRC staff’s 

response to each of the individual 

comments on the outline published on 

February 12, 2004, is included under 

‘‘Supplemental Information—Staff 

Response to Comments,’’ below. 

The February 12, 2004, Federal 

Register Notice emphasized that the 

NRC’s 1996 Policy Statement was 

directed to all employers, including 

licensees and their contractors, subject 

to NRC authority, and their employees. 

Therefore, the guidance document also 

applies to this broad audience. The 

Federal Register Notice also clarified 

that the practices outlined in the 

guidance document may not be practical 

or necessary for all employers. Rather, 

the purpose of the guidance is to 

provide information on practices which 

have been effective at some larger 

licensees to maintain or improve the 

work environment and ensure its 

employees feel free to raise safety 

concerns. The scope of the guidance 

document remains broad and the NRC 

staff continues to believe that not all the 

practices outlined in the guidance 

document will be practical or effective 

for all licensees. The guidance, in the 

form of a RIS, is provided below for 

comment. It is also available on the 

NRC’s Web site at: http://webwork:300/

what-we-do/regulatory/allegations/

scwe-guide.html, well as in ADAMS at 

ML042800027.

DATES: Comments on the guidance 

document may be submitted on or 

before November 15, 2004. Since: (1) A 

detailed outline of the guidance 

document has previously been 

published for comment; (2) the NRC 

staff has evaluated and responded to 

these comments below; and (3) the 

Commission approved, in an August 30, 

2004, Staff Requirements Memorandum, 

issuance of the guidance, the staff 

requests that any comments provided in 

response to this Federal Register Notice 

relate to the content of the document 

rather than the appropriateness of 

issuing the document. The staff plans to 

issue a final RIS containing the 

information in the document after 

reviewing and addressing any 

additional comments.

ADDRESSES: Submit written comments 

to: Michael T. Lesar, Chief, Rules and 

Directives Branch, Division of 

Administrative Services, Office of 

Administration, Mail Stop: T–6D59, 

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 O–1F21, 11555 Rockville 

Pike, Rockville, Maryland. Publically 

available documents created or received 

at the NRC after November 1, 1999, are 

available electronically at the NRC’s 

Electronic Reading Room at http://

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

From this site, the public can gain entry 

into the NRC’s Agencywide Documents 

Access and Management System 

(ADAMS), which provides text and 

image files of NRC’s public documents. 

If you do not have access to ADAMS or 

if there are problems in accessing the 

document located in ADAMS, contact 

the NRC PDR Reference staff at 1–800–

397–4209, 301–415–4737, or email to 

pdr@nrc.gov. 

You may also e-mail comments to 

nrcrep@nrc.gov. Fax comments to: 

Chief, Rules and Directive Branch, U.S. 

Nuclear Regulatory Commission at (301) 

415–5144.

FOR FURTHER INFORMATION CONTACT:

Lisamarie Jarriel, Agency Allegations 

Advisor, Office of Enforcement, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, (301)–

415–8529, email LLJ@nrc.gov.

SUPPLEMENTARY INFORMATION: 

Staff Response to Comments 

The NRC received 17 submittals 

providing comments suggesting changes 

or expressing concerns in response to 

the outline of the proposed industry 

guidance for establishing and 

maintaining a SCWE published in the 

Federal Register on February 12, 2004. 

Although most stakeholders, including 

representatives from both the industry 

and whistleblower advocates, were in 

general agreement concerning the 

content of the outline, some 

improvements were suggested and many 

have been incorporated into the draft 

document. The most significant 

comment, however, addressed whether 

the Agency should be producing such a 

document at all. Industry 

representatives commented that the 

industry, rather than the NRC, should 

develop the guidance. The following 

specific comments related to the topic of 

whether it is appropriate for the NRC to 

issue the guidance, and the NRC staff’s 

61050 Federal Register / Vol. 69, No. 198 / Thursday, October 14, 2004 / Notices 

1NEI 97–05, ‘‘Nuclear Power Plant PersonnelEmployee Concerns Program-Process Tools In A 

Safety Conscious Work Environment,’’ Rev. 1, 

January 2002.

response to these comments, are as 

follows: 

Comment: The May 1996 Policy 

Statement clearly set the NRC staff’s 

expectations for development of a 

SCWE and placed responsibility for 

establishing and maintaining a SCWE 

on the licensees. Therefore, it is not 

appropriate for the NRC staff to assume 

responsibility for development of a 

‘‘best practices’’ document in the area of 

SCWE. 

Response: The staff notes that the 

Commission more recently (March 26, 

2003) issued a staff requirements 

memorandum that specifically 

requested that the staff develop more 

guidance regarding ‘‘best practices’’ to 

encourage a SCWE. The 1996 Policy 

Statement did in fact place the 

responsibility for establishing and 

maintaining a SCWE on licensees, and 

this responsibility remains with 

licensees. The guidance document does 

not transfer the responsibility for 

establishing and maintaining a SCWE 

from licensees to the NRC; rather, the 

guidance document provides some 

tactics for establishing and maintaining 

a SCWE which have been successful at 

some licensees and may be of use to 

other licensees in upholding the 

responsibilities described in the 1996 

Policy Statement. 

Comment: ‘‘Best practices’’ are not 

enforceable nor useful for NRC 

inspectors. 

Response: The NRC staff plans to 

issue the attached guidance in the form 

of a RIS, which is not a regulatory 

requirement but is an established 

method of providing guidance to the 

industry. The purpose of the document 

is to provide guidance to the industry, 

rather than to dictate regulatory 

requirements or to serve as a required 

standard for use during NRC 

inspections.

Comment: Several comments were 

received that expressed a concern that 

any guidance developed by the NRC 

would be ‘‘defacto’’ regulatory 

requirements in this area, and that 

guidance from the NRC on ‘‘best 

practices’’ for establishing and 

maintaining a SCWE would create the 

impression that the guidance provided 

by the NRC would become the standard 

for an acceptable program. One 

commenter indicated that a requirement 

that surveys and interviews be 

performed on a regular basis would 

provide little benefit and would demand 

a substantial use of licensee resources. 

Response: As noted above, the NRC 

staff plans to issue the guidance 

document on establishing and 

maintaining SCWE as a RIS, which is 

not a regulatory requirement, but 

provides guidance to the industry on 

this important topic. While a perception 

may exist that such guidance documents 

are ‘‘defacto’’ requirements, the NRC 

staff clarified in the document that some 

of the practices outlined in the guidance 

may not be practicable or appropriate 

for every NRC licensee or contractor 

depending on the existing work 

environment and the size, complexity, 

or hazards of licensed activities. This 

statement should clarify that the 

information in the guidance document 

is not a requirement. 

Comment: The industry has 

developed and is using guidance from 

Nuclear Energy Institute (NEI) 97–05 1; 

therefore, additional guidance from the 

NRC is not necessary.

Response: The NRC staff has reviewed 

NEI 97–05, Revision 1 and a draft of 

Revision 2, and concurs that both 

revisions contain elements that are 

important to establishing and 

maintaining a SCWE. However, the staff 

noted some important distinctions in 

comparing the NEI document to the 

proposed NRC guidance on establishing 

and maintaining a SCWE, including: (1) 

A difference in the scope of the 

documents’ emphasis on problem 

identification and resolution processes, 

in that the NEI document focuses on the 

effectiveness of the Employee Concerns 

Program while the NRC document more 

broadly addresses the effect of all 

problem identification and resolution 

processes on the SCWE; (2) additional 

details in the NRC document regarding 

several practices, such as management 

behaviors and oversight of contractor 

activities, which may impact the SCWE 

at licensed facilities; (3) additional 

details in the NRC document regarding 

the content of SCWE training; (4) 

inclusion of a discussion of several 

important and complex issues in the 

NRC document which are not contained 

in the NEI document, such as the effect 

of incentive programs and 360 degree 

appraisal programs on the SCWE; and 

(5) guidance in the NRC document with 

respect to processes to help detect and 

prevent discrimination, or mitigate 

perceptions of discrimination, which is 

not included in the NEI document. 

In addition to the above comments 

which generally related to the 

appropriateness of the NRC staff issuing 

a guidance document on establishing 

and maintaining a SCWE, the following 

comments were received: 

Comment: Several comments were 

received regarding a concern that 

issuance of a guidance document on 

best practices to establish and maintain 

a SCWE may give the impression that 

the practices in the document are all 

inclusive, when in fact additional 

practices may be effective or necessary 

at some sites, and some intangible 

issues, such as trust and management 

turnover, may significantly impact the 

SCWE. In addition, a concern was raised 

that issuing a best practices document 

for establishing and maintaining a 

SCWE may give the impression that the 

practices in the document have been 

objectively demonstrated to be effective 

when in fact they have not. 

Response: The NRC staff agrees that 

not all of the practices outlined in the 

guidance document may be practicable 

or appropriate for every licensee or 

contractor and that practices not 

included in the guidance may also be 

effective in establishing and 

maintaining a SCWE. The NRC staff also 

agrees that additional licensee efforts 

beyond the practices in the guidance 

may be necessary to establish or 

improve a SCWE. The staff has revised 

the title of the document from one that 

refers to ‘‘best practices’’ to further 

emphasize the unique nature of each 

licensee’s work environment and has 

added language to emphasize that the 

practices in the document may not be 

practical or effective at all licensees, and 

that additional practices may be helpful 

or necessary to establish or maintain a 

SCWE at some facilities. In addition, 

several comments requested the 

addition of specific items to the outline. 

The specific comments were: 

Comment: More emphasis needs to be 

placed on the interpretation of data 

obtained and its impact on safe 

operations. 

Comment: More emphasis needs to be 

placed on the effectiveness of 

communications and teamwork as 

effective tools for the resolution of 

identified problems. 

Comment: The results of industry 

benchmarking (positive and negative 

attributes) should be included in the 

guidance. 

Comment: Industry Lessons learned 

should be included in the SCWE 

training. 

Response: Emphasis was added to the 

guidance document as requested in the 

first of these comments, but for the 

others the NRC staff determined that the 

guidance already adequately addressed 

these topics. 

Comment: Two comments were 

received which indicated that the NRC 

staff should develop a SCWE 

performance indicator or minimal 

acceptable standards for SCWE. 

Federal Register / Vol. 69, No. 198 / Thursday, October 14, 2004 / Notices 61051

Response: The NRC staff has 

considered developing an inspection 

process and assessment tools to evaluate 

the broader area of safety culture, 

which, as described in the guidance 

document, relates to a ‘‘safety-first 

focus’’. SCWE is an attribute of safety 

culture. In an August 30, 2004, staff 

requirements memorandum, the 

Commission indicated that the staff 

should consider developing tools that 

allow inspectors to rely on more 

objective findings in the area of Safety 

Culture. The Commission specifically 

approved enhancing the reactor 

oversight process’ treatment of crosscutting issues to more fully address 

Safety Culture, and to allow for more 

agency action as the result of the 

identification of a cross-cutting issue 

regarding Safety Culture. Implementing 

this direction from the Commission may 

involve development of some form of a 

performance indicator for SCWE or 

Safety Culture. However, the 

Commission to date has not approved 

development of a regulation or 

‘‘minimal acceptable standards’’ in the 

area of safety culture or SCWE. 

Comment: A question was posed in 

one comment regarding whether the 

guidance was intended to address only 

SCWE or the broader topic of Safety 

Culture. The commenter pointed out 

that the Commission did not specifically 

direct that the staff develop guidance 

about Safety Culture, but requested that 

the staff monitor developments abroad 

to ensure that the Commission remains 

informed about these efforts and their 

effectiveness. 

Response: The guidance document 

only addresses the topic of SCWE, 

rather than Safety Culture, and the NRC 

staff clarified this point in the draft 

guidance document. The staff notes that 

the commenter was correct in stating 

that the Commission did not direct that 

the staff develop guidance about Safety 

Culture, but requested that the staff 

monitor developments abroad to ensure 

that the Commission remains informed 

about these efforts and their 

effectiveness.

Comment: The NRC has not 

previously issued ‘‘best practices’’

documents for other areas where it has 

a regulatory requirement or other 

interest. 

Response: While the NRC staff has not 

routinely issued ‘‘best practices’’

documents for other areas where its has 

a regulatory requirement or interest, the 

staff notes that the Commission 

specifically directed the staff in the 

March 26, 2003 staff requirements 

memorandum, to develop further 

guidance that would identify ‘‘best 

practices’’ to encourage a SCWE. While 

issuing documents which identify ‘‘best 

practices’’ is not routine for the NRC 

staff, it is also not prohibited by NRC 

policy, and many NRC guidance 

documents, while not titled ‘‘best 

practices’’, incorporate industry 

practices which have been effective. 

The following two comments were 

received regarding a concern that the 

NRC guidance related to a review of 

lessons learned/case studies may 

involve privacy and attorney-client 

privilege information: 

Comment: The Draft Best Practices 

document suggests that licensees 

conduct self assessments of SCWE by 

periodically evaluating and assessing 

information from areas/organizations 

that may contribute or negatively effect 

the SCWE, including from legal counsel. 

Any such assessment that seeks 

information contained in attorney’s files 

could compromise the attorney-client 

privilege. 

Comment: The Draft Best Practices 

document suggests that licensees 

provide continuous training for 

employees, managers, and supervisors. 

Such training, according to the Draft 

Best Practices Document, should 

include ‘‘lessons learned/case studies’’. 

However, in the past the NRC has 

expressed concern that training 

involving cases studies might 

compromise the confidentiality of 

complainants who made allegations or 

engaged in litigation at that facility. The 

NRC should clarify its expectations with 

respect to the use of case studies. 

Response: The NRC staff 

acknowledges that information in 

licensees’ attorney’s files and some 

information in case studies could 

contain attorney-client privilege or 

privacy information and that review of 

such information by individuals 

completing self assessments or release 

of the information in a report of a self 

assessment would not be appropriate. 

Nonetheless, the NRC staff continues to 

believe that review of some legal 

documentation and case studies may be 

beneficial during self assessments of 

SCWE and training. As such, the NRC 

revised the sections of the guidance 

document which discuss review of legal 

documentation and inclusion of case 

studies in training to reflect that 

licensees should take into consideration 

privacy and attorney-client privilege 

considerations during such reviews. 

Comment: The Draft Best Practices 

document suggests that SCWE be 

reinforced by demonstrated 

management behavior that promotes 

employee confidence in raising and 

resolving concerns, including incentive 

programs. The use of incentive awards 

may be inappropriate in a SCWE 

toolbox and the use of this tool needs to 

be left to individual licensees. 

Response: As indicated in the 

guidance document on establishing and 

maintaining a SCWE, the NRC staff 

recognizes that some of the practices 

outlined in the guidance may not be 

practicable or appropriate for every NRC 

licensee. The information in the 

guidance is provided for licensees’

consideration when developing or 

enhancing existing SCWE programs, or 

attempting to identify and correct 

potential problems with a program. As 

indicated in the guidance, the NRC staff 

believe that incentive programs may 

encourage reporting of safety concerns, 

and the guidance specifies that licensees 

should ensure that incentive programs 

do not inadvertently discourage raising 

safety concerns. 

Comment: The Draft Best Practices 

document suggests that the volume and 

trend of such statistics as NRC 

allegations, NRC retaliation allegations, 

anonymous concerns, and of internally 

raised concerns be used as performance 

indicators. Reliance upon such statistics 

may be misleading. As the NRC has 

previously recognized, allegers bring 

concerns to the NRC for various reasons, 

including self-serving reasons and 

reasons unrelated to the work 

environment at a nuclear plant. 

Response: While allegers raise 

concerns to the NRC for differing 

reasons, the NRC staff believes that, in 

general, the volume and trend of NRC 

allegations, anonymous concerns, and 

internally raised concerns can be used 

as performance indicators. While some 

individuals may bring concerns to the 

NRC and the licensee for reasons other 

than problems with the work 

environment, statistics such as the 

number and type of allegations received 

involve the total licensee alleger 

population and therefore may be a 

reflection of the status of the general 

work environment. Clarification was 

added to the guidance document to 

indicate that no single indicator is 

sufficient in identifying weaknesses in 

the SCWE, nor are there absolute 

measures that indicate an unhealthy 

environment. This clarification 

emphasizes that while such information 

may be indicative of the status of the 

work environment, further analysis is 

needed to identify the causes of changes 

in the number and types of allegations 

received. 

Comment: Certain language in the 

Draft Best Practices document 

encourages licensees to encroach on 

contractors’ areas of responsibilities 

regarding SCWE. For example, it 

suggests that a licensee should oversee 

contractor SCWE-related matters, 

61052 Federal Register / Vol. 69, No. 198 / Thursday, October 14, 2004 / Notices 

including contractor SCWE-related 

programs, procedures, and training. In 

addition, the Draft Best Practices 

document suggests that licensee 

management should be involved in 

contractor proposed changes to 

employment conditions. Such actions 

could be an inappropriate encroachment 

on a contractor’s ability to manage its 

own employees and could expose 

licensees to liability. NRC should clarify 

that contractors, and not licensees, are 

responsible for the content and 

effectiveness of the SCWE program 

within the contractor’s organization.

Response: The NRC staff disagrees 

that licensee oversight of a contractor’s 

SCWE activities is an inappropriate 

encroachment on a contractor’s ability 

to manage its own employees. Rather, 

the Commission’s long-standing policy 

has been to hold licensees responsible 

for compliance with NRC requirements, 

regardless of whether the licensee uses 

a contractor to complete licensed 

activities. Since the actions of 

contractors can affect the SCWE at NRC 

licensed facilities, licensees are 

responsible for ensuring that their 

contractors maintain an environment in 

which contractor employees are free to 

raise concerns without fear of 

retaliation. While the NRC staff agrees 

that contractors are responsible for the 

content and the effectiveness of the 

SCWE within the contractor’s 

organization, licensees are also 

responsible for overseeing contractor 

activities which may impact the SCWE 

at NRC licensed facilities. 

Comment: The Draft Best Practices 

document suggests that senior 

management review proposed employee 

actions (above oral reprimand) before 

they are taken to confirm that there are 

no elements of retaliation involved. 

Requiring senior management to review 

every disciplinary action would pose an 

unnecessary burden upon management. 

Response: As noted in the response 

above, the staff plans to issue the 

document on establishing and 

maintaining a SCWE as guidance for the 

industry rather than as a regulatory 

requirement. In addition, the NRC staff 

clarified in the document that some of 

the practices in the outline may not be 

practical or appropriate for every 

licensee, depending on the work 

environment and/or the size, 

complexity, and hazards of licensed 

activities. As such, the guidance does 

not require that senior management at 

every NRC licensee review every 

disciplinary action. Rather, the guidance 

suggests that review of disciplinary 

actions, such as those above an oral 

reprimand, may be beneficial at some 

licensed facilities. Review of 

disciplinary actions has benefited the 

work environment at some licensee 

facilities. The NRC staff also revised the 

language to the guidance document to 

provide disciplinary actions above an 

oral reprimand as one potential 

threshold to consider rather than as the 

suggested threshold. This language 

should further emphasize that licensees 

should customize SCWE practices to 

suit the needs of the facility. 

The comments are available in their 

entirety on the Office of Enforcement’s 

Web page at: http://www.nrc.gov/whatwe-do/regulatory/allegations/scwecomments.html.

Supplementary Information—Draft 

NRC Regulatory Issue Summary: 

Guidance for Establishing and 

Maintaining a Safety Conscious Work 

Environment 

Addressees 

All U.S. Nuclear Regulatory 

Commission (NRC) licensees, applicants 

for licenses, holders of certificates of 

compliance, and their contractors. 

Intent 

Although not required by regulation, 

licensees and other employers subject to 

NRC authority are expected to establish 

and maintain a safety conscious work 

environment (SCWE, pronounced 

‘‘squee’’). The NRC is issuing this 

regulatory issue summary (RIS) to 

supplement guidance for fulfilling this 

expectation. The guidance describes a 

number of practices that may facilitate 

the efforts of licensees and others in 

developing and maintaining a SCWE. 

The NRC recognizes that some of the 

practices described in this document 

may not be practical for every licensee, 

depending on the existing work 

environment and/or the size, 

complexity, and hazards of the licensed 

activities. Although this RIS requires no 

action or written response, all NRC 

addressees are encouraged to review 

and consider the contents of this RIS 

when evaluating whether a SCWE exists 

at their facility.

Background Information 

In April 2000, the Nuclear Regulatory 

Commission’s Executive Director of 

Operations chartered the Discrimination 

Task Group (DTG) to evaluate issues 

associated with matters covered by the 

NRC’s employee protection standards, 

including SCWE. The DTG 

recommendations were provided to the 

Commission in September 2002 in 

SECY–02–0166. In a March 26, 2003, 

staff requirements memorandum (SRM) 

for SECY–02–0166, the Commission 

directed the staff to take certain actions 

in the area of SCWE and safety culture, 

including providing the guidance 

herein. Regarding these two terms, 

SCWE and safety culture, there has been 

some confusion historically. Many use 

the terms interchangeably. They are, in 

fact, distinct, but related concepts. In 

the Commission’s January 24, 1989 

‘‘Policy Statement on the Conduct of 

Nuclear Power Operations,’’ safety 

culture is described as ‘‘the necessary 

full attention to safety matters’’ and ‘‘the 

personal dedication and accountability 

of all individuals engaged in any 

activity which has a bearing on the 

safety of nuclear power plants.’’ A 

strong safety culture is also often 

described as having a ‘‘safety-first 

focus.’’ Attributes include the principles 

of safety-over-production, procedural 

adherence, and conservative 

decisionmaking. The willingness of 

employees to identify safety concerns, 

i.e., SCWE, is also an important attribute 

of a strong safety culture. 

In July 1993, the agency reassessed 

the NRC’s program for protecting 

allegers against retaliation. Retaliation is 

prohibited by NRC regulations in Parts 

19, 30, 40, 50, 60, 61, 63, 70, 72, 76, and 

150. It was recommended that an agency 

policy be developed to emphasize that 

licensees and their contractors are 

responsible for achieving and 

maintaining a work environment which 

is conducive to the reporting of 

concerns without fear of retaliation. In 

May 1996, the NRC issued such a 

policy, ‘‘Freedom of Employees in the 

Nuclear Industry To Raise Safety 

Concerns Without Fear of Retaliation 

(61 FR 24336 or www.nrc.gov/what-wedo/regulatory/allegations/scwe-frn-5-14-

96.pdf). A SCWE is defined by the NRC 

as an environment in which ‘‘employees 

feel free to raise safety concerns, both to 

their management and to the NRC, 

without fear of retaliation.’’ The NRC 

also recognizes that, aside from fear of 

retaliation, other matters can affect an 

employee’s willingness to identify 

safety concerns, such as the 

effectiveness of the licensee’s processes 

for resolving concerns and senior 

management’s ability to detect and 

prevent retaliatory actions. The NRC 

policy statement, therefore, addresses 

these attributes of a SCWE as well. The 

guidance provided by this policy, 

however, is very broad. 

In SRM–SECY–02–0166 the 

Commission directed the staff to 

develop further guidance, in 

consultation with stakeholders, that 

would identify ‘‘best practices’’ for 

encouraging a SCWE. The Commission 

indicated that the proposed guidance 

should emphasize training of managers 

on their obligations under the employee 

protection regulations and should make 

Federal Register / Vol. 69, No. 198 / Thursday, October 14, 2004 / Notices 61053

2 ‘‘Reassessment of the NRC’s Program for 

Protecting Allegers Against Retaliation, NUREG 

1499, January 1994.’’

3 ‘‘Policy Statement for Nuclear Employees 

Raising Safety Concerns Without Fear of 

Retaliation,’’ Federal Register Notice May 14, 1996, 

(Volume 61, Number 94).

recommendations about the content of 

the training in this important area. In 

the 1996 policy statement, the NRC 

acknowledged that although the 

statement and principles, described 

therein, apply to all licensees and other 

employers subject to NRC authority, 

some of the suggestions, programs, or 

steps that might be taken to improve the 

quality of the work environment (e.g., 

establishment of a method to raise 

concerns outside of the normal 

management structure such as an 

employee concerns program) may not be 

practical for every licensee or other 

employer, depending on factors such as 

the number of employees, complexity of 

operations, potential hazards, and the 

history of allegations made to the NRC. 

Similar to the suggestions and 

principles in the 1996 policy statement, 

the practices described in this document 

may not be practical for every licensee, 

depending on the existing work 

environment and/or the size and 

complexity and hazards of the licensed 

activities. For example, some of the 

practices in this guidance document 

may not be applicable for very small 

licensees or other affected employers 

that have only a few employees and a 

very simple management structure. 

Summary of Issue 

An environment where employees 

feel free to raise safety concerns may 

contribute to a reduced risk associated 

with licensed activities and the use of 

radioactive materials. Attachment 1, 

‘‘Establishing & Maintaining a Safety 

Conscious Work Environment,’’ is 

provided as guidance to licensees, 

applicants, and contractors on 

developing and maintaining a SCWE in 

response to the Commission’s March 

2003 directive. Current industry 

guidance, Nuclear Energy Institute (NEI) 

97–05, ‘‘Nuclear Power Plant 

Personnel—Employee Concerns 

Program—Process Tools In a Safety 

Conscious Work Environment’’

(www.nei.org/documents/

Nuclear_Employee_Concerns_Tools.pdf)

contains elements that are important to 

establishing and maintaining a SCWE as 

well, and complements the guidance 

provided by this RIS. However, NEI 97–

05 primarily focuses on establishing an 

effective employee concerns program 

(ECP), an alternative process for 

reporting safety concerns. Attachment 1 

addresses SCWE more broadly as it 

applies to all problem identification and 

resolution processes. 

The NRC recognizes that some of the 

practices outlined in this guidance may 

not be practicable or appropriate for 

every NRC licensee or contractor, 

depending on the existing work 

environment, and/or the size or 

complexity, and the hazards of the 

licensed activities. In addition, practices 

not included in this guidance may be 

equally effective in establishing and 

maintaining a SCWE. The NRC staff 

emphasizes that licensees are 

responsible for establishing and 

maintaining a SCWE and that 

implementation of the guidance may not 

improve a SCWE without additional 

efforts by site management. However, 

the NRC believes that the elements in 

this guidance could be helpful to NRC 

licensees, applicants, and their 

contractors. 

The guidance in Attachment 1 is 

intended to supplement existing 

information that was communicated in 

the 1996 policy statement. The 

supplemental elements of a SCWE 

summarized in this attachment were 

developed utilizing information 

obtained from reactive inspections of 

problematic licensee programs, as well 

as reviews of successful progressive 

SCWE programs, and insights obtained 

during discussions with nuclear 

industry professionals in this field. 

The attached document provides 

guidance with respect to (1) encouraging 

employees to raise safety concerns, 

including incentive programs and 

communication tools, (2) SCWE training 

content and periodicity, (3) ECP and 

ombudsman programs, (4) tools to 

assess the SCWE, including 

performance indicators, behavioral 

observations, and surveys, (5) contractor 

awareness of SCWE principles and 

expectations, and (6) processes to help 

detect and prevent discrimination, or 

mitigate perceptions of discrimination. 

Backfit Discussion 

This RIS requires no action or written 

response and is, therefore, not a backfit 

under 10 CFR 50.109, 70.76, 72.62, or 

76.76. Consequently, the staff did not 

perform a backfit analysis. 

Federal Register Notification 

A notice of opportunity for public 

comment on this RIS was published in 

the Federal Register (xx FR xxxxx) on 

{date}. Comments were received from 

{indicate the number of commentors by 

type}. The staff considered all 

comments that were received. The 

staff’s evaluation of the comments is 

publicly available through the NRC’s 

Agencywide Documents Access and 

Management System (ADAMS) under 

Accession No. ML042800027.

Small Business Regulatory Enforcement 

Fairness Act of 1996 

The NRC has determined that this 

action is not subject to the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. 

Paperwork Reduction Act Statement 

This RIS does not request information 

collections and, therefore, is not subject 

to the requirements of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 44 U.S.C. 3501 et seq.). 

Attachment 1: Establishing & 

Maintaining a Safety Conscious Work 

Environment 

Background 

In July 1993, the Nuclear Regulatory 

Commission’s Executive Director for 

Operations directed that a team reassess 

the NRC’s program for protecting 

allegers against retaliation. The team 

evaluated the process that was in place 

in 1993 and sought comments from 

other NRC offices, other Federal 

agencies, licensees, former allegers and 

the public. One recommendation from 

the 1993 effort was the development of 

an agency policy to emphasize that 

licensees and their contractors are 

expected to achieve and maintain a 

work environment which is conducive 

to the reporting of concerns without fear 

of retaliation.2

On May 14, 1996, the NRC issued a 

policy statement 3 to express the 

Commission’s expectation that licensees 

and other employers subject to NRC 

authority will establish and maintain 

safety-conscious environments in which 

employees feel free to raise safety 

concerns, both to their management and 

to the NRC, without fear of retaliation. 

Licensees, contractors, subcontractors, 

and other employers in the nuclear 

industry are responsible for maintaining 

a safety conscious work environment 

(SCWE). This policy statement is 

applicable to the NRC-regulated 

activities of all NRC licensees, 

certificate holders, and their contractors 

and subcontractors.

In April 2000, the Nuclear Regulatory 

Commission’s Executive Director for 

Operations chartered the Discrimination 

Task Group (DTG) to evaluate issues 

associated with matters covered by the 

NRC’s employee protection standards, 

including SCWE and SCWE training for 

managers—the subject of a petition for 

rulemaking, PRM–30–62, submitted on 

August 13, 1999. The DTG 

61054 Federal Register / Vol. 69, No. 198 / Thursday, October 14, 2004 / Notices 

4SECY–02–0166, ‘‘Policy Options and 

Recommendations for Revising the NRC’s Process 

for Handling Discrimination Issues,’’ September 12, 

2002.

5Staff Requirements—SECY–02–0166—‘‘Policy 

Options and Recommendations for Revising The 

NRC’s Process for Handling Discrimination Issues’’, 

March 26, 2003.

recommendations 4 were provided to the 

Commission in September 2002. In a 

March 26, 2003, staff requirements 

memorandum,5 the Commission 

directed the staff, in consultation with 

stakeholders, to develop further 

guidance that identifies best practices 

for encouraging a SCWE. On February 

19, 2004, the staff met with stakeholders 

to discuss an expanded outline of best 

practices prepared by the staff based on 

the guidance contained in the 1996 

policy statement. Comments on the 

outline were also solicited in a February 

12, 2004, Federal Register notice. The 

comments that were received during the 

meeting and in response to the Federal 

Register notice were considered in 

preparing this guide.

Introduction 

The guidance in this document is 

intended to supplement existing 

information that was communicated in 

the 1996 policy statement. The 

supplemental elements of a SCWE 

summarized in this document were 

developed using information obtained 

from reactive inspections of problematic 

licensee programs, reviews of successful 

progressive SCWE programs, and 

insights obtained during discussions 

with nuclear industry professionals, 

including individuals who provide 

training to the industry on the subject 

and attorneys who have represented 

licensees and whistleblowers in 

proceedings. 

The NRC recognizes that some of the 

practices outlined in this guidance may 

not be practicable or appropriate for 

every NRC licensee or contractor, 

depending on the existing work 

environment and/or the size, 

complexity, and hazards of the licensed 

activities. In addition, practices not 

included in this guidance may be 

effective in establishing and 

maintaining a SCWE. The NRC staff 

emphasizes that licensees are 

responsible for establishing and 

maintaining a SCWE and that 

implementation of this guidance may 

not improve a SCWE without additional 

efforts by site management. However, 

the NRC believes that the elements in 

this guidance could be helpful to NRC 

licensees and their contractors when 

developing or enhancing existing SCWE 

programs, or when attempting to 

identify and correct potential problems 

in a program. 

Elements of a Safety Conscious Work 

Environment 

Effective Processes for Problem 

Identification and Resolution 

Effective processes for problem 

identification and resolution are 

essential to ensuring the safe use of 

nuclear materials and operation of 

facilities. The following guidance 

discusses attributes of the work 

environment that encourage individuals 

to look for and articulate safety concerns 

and effectively and efficiently address 

and resolve the concerns. The approach 

taken to develop the SCWE and to 

implement the appropriate processes 

described below will depend on several 

factors, including the size of the 

licensee, applicant, or contractor.

A. Employees Are Encouraged To Raise 

Safety Concerns 

SCWE Policy. A SCWE policy 

statement which (a) is applicable to 

employees and contractors, (b) asserts 

that it is everyone’s responsibility to 

promptly raise concerns, and (c) makes 

clear that retaliation for doing so will 

not be tolerated helps establish a SCWE 

and helps communicate senior 

management’s expectations for 

maintaining it. In addition, the policy 

may include: 

• A statement that, to the extent 

appropriate, employees are allowed and 

encouraged to use work hours to report 

concerns; 

• Sanctions for retaliation by 

supervisors, managers, or peers; 

• Expectations for management 

behavior that fosters employee 

confidence in raising concerns; 

• Information on the various avenues 

available for raising concerns; 

• The rights of employees to raise 

concerns externally; and 

• A commitment to provide SCWE 

training. 

SCWE Training. SCWE training for 

managers, supervisors, and employees 

helps reinforce the principles outlined 

in the licensee’s SCWE policy. The 

training given to managers and 

employees should include applicable 

laws, regulations and policies 

underlying SCWE expectations. 

• Managers and employees should 

know what ‘‘protected activities’’ are, 

besides raising safety concerns. 

The term ‘‘protected activity’’ has 

been broadly interpreted by the 

Department of Labor and the U.S. 

Courts. A protected activity is defined 

by NRC regulation as including, but not 

limited to: 

Æ Providing the Commission or 

employer information about alleged or 

possible violations of the Atomic Energy 

Act, the Energy Reorganization Act, or 

requirements imposed under either 

statute; 

Æ Refusing to engage in any practice 

made unlawful under either statute or 

the requirements, if the employee has 

identified the alleged illegality to the 

employer; 

Æ Requesting the Commission to 

institute action against the employer for 

the administration or enforcement of 

these requirements; 

Æ Testifying in any Commission 

proceeding, or before Congress, or at any 

Federal or State proceeding regarding a 

provision of either statute; 

Æ Assisting or participating in, or 

being about to assist or participate in, 

these activities. 

• Managers and employees should 

also know what an ‘‘adverse action’’ is. 

An ‘‘adverse action’’ is generally 

defined as an adverse change of the 

terms, conditions, or benefits of the 

employee’s work. Adverse employment 

actions may include changes in 

employment status, regardless of 

whether the individual’s pay is affected, 

and threats to employment. 

• They also need to know the 

meaning of ‘‘retaliation’’ under the 

NRC’s regulations. 

An adverse action is deemed 

retaliatory if it is taken because the 

individual was engaged in a protected 

activity. 

The training given should also 

include the consequences for deviations 

from applicable laws, regulations, and 

policies underlying SCWE expectations. 

The training should identify 

appropriate gateways for employees and 

contractors to identify concerns 

(manager, quality assurance programs, 

corrective action programs, appeal 

processes, alternative processes for 

raising concerns such as a licensee 

Employee Concerns Programs or an 

ombudsman program, NRC, and DOL). 

The training should include a 

description of how each program works, 

and the role of the manager in each 

program. 

The training should include 

expectations for management behavior. 

For example, managers should be 

expected to make themselves available 

to the workforce by various means, 

including an ‘‘open-door’’ policy in the 

office and when managers are in the 

field. Managers also need to be sensitive 

to employees’ potential reluctance to 

raise concerns and may need to protect 

employees’ identity or the identity of 

others involved. Basic listening skills, 

effective ways to seek input, and 

Federal Register / Vol. 69, No. 198 / Thursday, October 14, 2004 / Notices 61055

expressions of appreciation to those 

who raise concerns are other behaviors 

to be encouraged in managers. Managers 

should be knowledgeable of and 

periodically use various media 

instruments to communicate their 

SCWE principles. Management should 

establish timeliness goals for responding 

to concerns, commensurate with safety 

significance, and provide periodic 

updates to the individuals who 

identified the concerns. Managers 

should evaluate the effectiveness of 

their responses to determine whether 

the responses adequately addressed 

employees’ concerns. Managers should 

ensure that operational or maintenance 

goals do not make supervisors less 

receptive to safety concerns, particularly 

concerns which may result in 

significant costs or schedule delays. 

Finally, training for managers should 

include information to help them 

identify and address signs of a ‘‘chilled 

environment,’’ that is, an environment 

in which employees are afraid to raise 

safety concerns for fear of retaliation.

Managers who model positive traits of 

availability, receptiveness, sensitivity, 

encouraging communications, 

timeliness, and responsiveness 

associated with a SCWE will promote 

employee confidence in identifying and 

resolving concerns. Managers who have 

exhibited success in this area should 

consider training or mentoring other 

mangers in an effort to duplicate the 

success. 

Similarly, expectations for employees’

behavior should also be included in the 

employees’ training. Consider 

emphasizing the following employee 

behaviors during training: 

• Individual responsibility for 

reporting concerns; 

• Clear communication of the 

concern and confirmation of 

understanding with the person receiving 

the concern; 

• Willingness to suggest resolutions 

to concerns and participate to in their 

resolution; 

• Followup to ensure the concern is 

adequately addressed; 

• Need for every employee to 

demonstrate respect for others who 

identify concerns. 

Initial training of recently hired 

employees or recently promoted 

managers should be conducted as soon 

as practicable and refresher training for 

existing staff should be conducted 

annually or more frequently, as 

determined by the needs and 

complexity of the organization. Annual 

refresher training for employees and 

managers should review key points from 

initial training and include lessons 

learned, as appropriate, from successes 

and/or problem areas. 

SCWE Incentive Programs. An 

incentive program can be developed 

which provides recognition and rewards 

for individual and team efforts in 

identifying and/or resolving safety 

issues. In addition, implementation of 

site-wide bonus and incentive programs 

which reflect safety objectives over 

production goals may also encourage 

reporting of safety concerns. However, 

some care should be taken to ensure that 

incentive programs do not inadvertently 

discourage reporting concerns (e.g., 

some employees may not want 

recognition). 

Employee errors can have a 

detrimental effect on safety and efforts 

should be made to reduce the frequency 

and significance of errors. An 

environment that is conducive to the 

self-reporting of errors will allow errors 

to be identified more quickly and can 

reduce the potential significance of 

some errors. While it is important to 

hold employees accountable for their 

errors, licensee personnel management 

practices, to the extent practicable, 

should consider that actions against 

personnel who self-report errors can, in 

some circumstances, discourage 

employees from raising concerns, near 

misses, etc. Consider using selfidentification and prompt, effective 

corrective actions as mitigating 

circumstances for consideration when 

addressing personnel matters involving 

self-identified errors. 

B. Management Is Promptly Notified of 

Concerns 

Aside from the practices discussed 

above concerning policies, training, and 

incentive programs designed to create a 

work environment where employees 

feel free to raise safety concerns without 

fear of retaliation, there are other 

behaviors and processes which may 

help employees promptly identify and 

notify management of concerns. 

Employees and management that 

demonstrate an open and questioning 

attitude by asking ‘‘why’’ and ‘‘what if’’

type questions help to ensure concerns 

are promptly identified. Processes for 

identifying concerns should be 

accessible and user-friendly. A 

corrective action program which is 

flexible in its use of paper forms and/

or terminals, conveniently placed 

throughout the facility, also helps 

ensure prompt notification of safety 

concerns. An accessible and 

approachable management team further 

motivates employees to report concerns, 

including communications that ensure 

an understanding of the concerns prior 

to their proposed resolution and 

inspection. As appropriate, employees 

should be allowed and encouraged to 

spend needed work hours to report 

concerns. 

C. Concerns Are Promptly Prioritized 

and Reviewed 

Safety should be a primary factor in 

the concern prioritization scheme and 

in determining the breadth and depth of 

the evaluation. Effective communication 

plans should ensure the sharing of 

information between affected 

departments so that the potential impact 

of the identified concerns on safety can 

be appropriately assessed. In addition, 

management and employees should 

develop expectations concerning 

timeliness to complete the evaluation 

and resolution of issues. The process for 

screening issues should include a 

review for operability and reportability 

as applicable. For significant conditions 

adverse to quality, the evaluation 

should be sufficient to identify the root 

and contributing causes of the issue. In 

addition, the root cause analysis should 

address both the extent of the condition 

and the cause of the issue. 

D. Concerns Are Appropriately 

Resolved 

Timeliness of the corrective actions 

should be commensurate with the safety 

significance of the issue. Processes 

should be in place to ensure that 

appropriate actions are taken in 

response to all conditions adverse to 

quality. For significant conditions 

adverse to quality, corrective actions 

should be taken to address the root 

causes, contributing causes, and the 

extent of the condition caused by the 

identified concern. 

E. Timely Feedback Is Provided to the 

Concerned Individual 

Timely feedback should be provided 

at appropriate points during the concern 

resolution process. The individual 

receiving the information may need to 

discuss the concern with the employee 

raising the concern in order to 

understand the issue and its safety 

significance. Additional feedback may 

be necessary during the evaluation 

when it is apparent that resolution may 

take longer than anticipated. When the 

evaluation is complete, it is important to 

followup with the concerned employee 

to share proposed actions to address the 

issue, if appropriate. The most effective 

feedback process is one which is 

sufficiently flexible to permit a 

concerned employee who wants 

anonymity to obtain feedback. 

61056 Federal Register / Vol. 69, No. 198 / Thursday, October 14, 2004 / Notices 

6Although the NRC makes statistical information 

regarding allegations publicly available and 

available to some licensees, this information does 

not include information that could be used to 

identify a concerned individual who has raised 

their concern to NRC.

F. Appeal Process for Concerns 

An appeal process to ensure that 

issues were thoroughly addressed (e.g., 

differing professional opinion or 

alternative dispute resolution processes) 

can provide added assurance that 

concerns are appropriately resolved. 

G. Self-Assessments of Problem 

Identification & Resolution (PI&R) 

Processes 

It is a good practice to periodically 

evaluate the adequacy and timeliness of 

responses, as well as the satisfaction of 

the concerned individual with the 

response and process. In addition, a 

self-assessment should address whether 

employees feel free to raise issues using 

the various processes employed by the 

licensee and whether these processes 

are viewed as effective, and why or why 

not. An assessment should include an 

appraisal of the effectiveness of the root 

cause analyses for significant issues and 

the effectiveness of associated corrective 

actions. Management should have a 

plan to promptly review the findings of 

such self-assessments and implement 

appropriate corrective actions.

H. An Alternative Process to Line 

Management 

To address the situation where an 

individual wishes to raise a concern to 

someone other than their management 

or through the corrective action 

program, an alternative process, such as 

an employee concerns program, can be 

useful. Given the nature of many of the 

issues one may wish to raise outside of 

line management, such a process should 

ensure identity protection and/or 

anonymity to the extent appropriate. 

Such an alternative process should be 

accessible in multiple ways (e.g., walkins, hot lines, drop boxes) to the extent 

practical, given the size of the 

organization. In considering the 

physical location of the personnel 

operating the alternative process, one 

should consider both their accessibility 

to the workforce and their visibility. An 

overly visible office may not allow 

discreet visits. Personnel training 

programs, advertising posters, and 

facility news articles help provide 

notification of the process. Like 

concerns brought to the corrective 

action program, concerns brought to the 

alternative program must receive 

appropriate operability and reportability 

reviews and be properly prioritized 

using safety as a primary factor for 

determining the breadth, depth, and 

timeliness of the evaluation. While 

independent from line organizations 

involved in the concerns, the process is 

most effective if the personnel doing the 

evaluations are directly accountable to 

senior management. Senior management 

provides appropriate support and 

resources, including staffing and access 

to necessary documents and materials to 

conduct inspections. The process 

should provide timely feedback on the 

status and resolution of concerns and 

status reports to senior management 

with analyses of program data and 

observations. 

Tools To Assess the SCWE 

Information gathered from the 

following tools should be considered for 

program enhancements, training 

enhancements, coaching and counseling 

opportunities, organizational changes, 

and survey topic suggestions. As with 

the processes for problem identification 

and resolution, discussed above, the 

choice of tools and their usefulness will 

depend on several factors, including the 

size of the licensee, applicant, or 

contractor, and the complexity and 

hazards of the licensed activities. 

A. Lessons Learned Evaluations 

It may be useful to periodically 

evaluate information from pertinent 

organizations and processes which may 

contribute to or negatively affect the 

SCWE to identify enhancements or 

adjustments to the organizations and 

processes. The organizations and 

processes with pertinent information 

may include the primary process for 

raising concerns (e.g., correction action 

program), an alternative process for 

raising concerns (e.g., employee 

concerns program, or ombudsman), 

human resources (regarding work 

environment concerns, etc.), legal 

counsel (regarding Department of Labor 

files, etc.), and/or regulatory affairs 

(regarding NRC findings or 

observations). Discussions about 

specific documentation or events should 

take into consideration privacy and 

attorney-client restrictions. Lessons 

learned from external organizations can 

also be useful 

B. Benchmarking 

Participation in applicable industry 

forums or peer-group assessments of 

other SCWE programs where ideas and 

practices are exchanged and various 

SCWE elements compared can also 

provide valuable insights. 

C. Performance Indicators 

Parameters that help indicate the 

effectiveness of the SCWE training and 

problem identification and resolution 

processes should be identified and 

monitored. For example, the number 

and trend of NRC allegations 6 (available 

only for large licensees) compared to the 

number and trend of internally raised 

concerns may be an indication of 

employee willingness to raise concerns 

internally. Similarly, the percent of 

anonymous concerns raised may 

indicate employee willingness to raise 

concerns without fear of retaliation.

Licensee effectiveness in preventing 

retaliation claims may be indicated by 

the number and trend of NRC retaliation 

allegations (available only for large 

licensees) compared to the number and 

trend of internally raised retaliation 

concerns. 

The percent of employees with a 

questioning attitude and a willingness 

and ability to raise safety concerns may 

be indicated by comparing the number 

of risk-significant concerns that are selfrevealed, self-identified, or externally 

identified by INPO, NRC, OSHA, etc., to 

the total number of concerns. 

Finally, the backlog and age of 

concerns may indicate the effectiveness 

of processes for resolving concerns. 

No single indicator is sufficient in 

itself to identify weaknesses in the 

SCWE, nor are there absolute 

measurements that indicate an 

unhealthy environment. Nonetheless, 

monitoring the trends in various 

characteristics of the SCWE with 

performance indicators like those 

mentioned above may provide insights 

into the strengths and weaknesses of the 

SCWE at a site.

D. Survey and Interview Tools 

Survey instruments and interview 

questionnaires implemented by 

organizations independent of the groups 

being surveyed or interviewed can be 

useful tools and complement other tools 

used to assess the SCWE. 

Pre-survey or pre-interview 

communications are a very important 

part of such tools. Communications 

with the workforce prior to the 

implementation of the survey or 

interview should include a request for 

participation, a statement of the need for 

input, a promise to protect participants’

identity, the intended use of the 

gathered information, and a promise to 

share the results with the workforce. 

Regular employee business hours 

should be made available to conduct 

surveys or interviews. 

The scope of SCWE surveys should 

include the following: 

Federal Register / Vol. 69, No. 198 / Thursday, October 14, 2004 / Notices 61057

• Awareness of company policies and 

practices with regard to raising safety 

concerns and avenues available for 

raising concerns; 

• Management behaviors encouraging 

the workforce to raise safety concerns; 

• Workers’ willingness to raise safety 

concerns; 

• Effectiveness of the processes 

available (normal and alternative) for 

raising concerns; 

• Management’s ability to detect and 

prevent retaliation for raising safety 

concerns. 

Space should be provided on surveys 

for written comments. 

Survey or interview follow-up action 

plans should be developed to address 

findings that are specific to work groups 

or generic to the facility. In addition, 

management should commit to share the 

results with the workforce and share 

action plans to address findings. The 

results of surveys or interviews may 

indicate employee beliefs, attitudes, and 

satisfaction with key SCWE attributes, 

as well as ways to improve the SCWE. 

E. Direct Observations 

Direct observations of individuals’

behavior provides information regarding 

the effectiveness of any SCWE training. 

Management behaviors observed may 

indicate whether a supervisor is 

receptive to concerns and supports and 

rewards employees for raising concerns. 

Direct observation of employees in the 

work environment can provide valuable 

insights into the employees’ questioning 

attitude and willingness to challenge 

perceived unsafe behavior. 

F. Exit Interviews and Surveys 

Exit interviews and surveys, 

conducted to facilitate the identification 

of safety issues from exiting employees, 

provide an opportunity to capture 

concerns an individual may not have 

been comfortable raising while working 

at the facility. These activities should 

include follow-up mechanisms for 

exiting employees who want to be 

informed of the resolution of their 

concerns. Employees’ identities should 

be protected. 

G. 360-Degree Appraisals 

Consideration should be given to the 

implementation of a ‘‘360-degree’’

appraisal program, where employees are 

asked to provide feedback on manager 

SCWE behavior. 

Improving Licensee Contractor 

Awareness of SCWE Principles 

The Commission’s longstanding 

policy is to hold its licensees 

responsible for compliance with NRC 

requirements, even if licensees use 

contractors for products or services 

related to NRC-regulated activities. 

Thus, licensees are responsible for 

ensuring that their contractors maintain 

an environment in which contractor 

employees are free to raise concerns 

without fear of retaliation. In 

considering whether enforcement action 

should be taken against licensees for the 

actions of their contractor, the NRC 

considers, among other things, the 

extent and effectiveness of the licensee’s 

involvement with and oversight of the 

contractor’s environment for raising 

concerns. 

A. Communicating Licensee SCWE 

Expectations to Contractors 

Licensee SCWE expectations of 

contractor responsibilities as they relate 

to creating and maintaining a SCWE 

should be communicated to contractors 

providing components, equipment, 

materials, or other goods and services 

related to NRC-regulated activities. It 

should be the licensee’s expectation that 

the contractors and their subcontractors 

are aware of applicable regulations. 

Furthermore, a licensee may want to 

communicate to its contractors and 

subcontractors that the licensee expects 

them to demonstrate that either an 

effective program exists that prohibits 

discrimination against contractor 

employees for engaging in protected 

activity and fosters a SCWE, or they 

adopt and comply with the licensee’s 

SCWE program for their employees. 

B. Licensee Oversight of Contractor 

SCWE Activities 

Aside from communicating its SCWErelated expectations to their contractors, 

licensees may wish to oversee 

contractor SCWE-related activities. Such 

oversight may include: 

• Reviewing contractor programs and 

processes to prohibit discrimination and 

foster a SCWE; 

• Assessing the contractor 

management’s commitment to SCWE 

principles through document review or 

behavioral observations; 

• Reviewing contractor training, both 

for content and for effectiveness; 

• Monitoring the contractor’s actions 

to address concerns, such as reviewing 

contractor investigations to determine 

the need to conduct independent 

licensee investigations;

• Evaluating actions, if any, the 

contractor takes to mitigate the potential 

impact of employment decisions or 

organizational changes on the SCWE. 

C. Licensee Management Involvement in 

Contractor Cases of Alleged 

Discrimination 

Given that the SCWE is most 

challenged when changes are made to 

the employment conditions of the 

workforce, it can be very beneficial to 

licensees to monitor such changes when 

proposed or executed by the contractor. 

Licensee oversight in this area might 

include evaluating contractor processes 

for making changes to employment 

conditions, such as disciplinary policies 

or reduction-in-force plans, to ensure 

the processes are well-defined, 

defensible, and communicated to the 

workforce in advance of their 

implementation. 

Furthermore, licensee management 

should evaluate contractor-proposed 

changes to employment conditions to 

ensure the proposed changes follow 

defined processes and are 

nonretaliatory. The licensee can also 

assess whether the contractor has taken 

into consideration the potential effect 

that their actions might have on the 

SCWE, and, if appropriate, actions to 

mitigate the impact. 

Finally, contractor changes to 

employment conditions that are alleged 

to be or are likely to be perceived as 

retaliatory should be reviewed to ensure 

the changes are not retaliatory or would 

otherwise effect the SCWE adversely. 

D. Contractor SCWE Training 

Contractor SCWE training can be 

provided by the contractor or licensee. 

As with the training given to licensee 

employees, the contractor training 

should cover the laws, regulations, and 

policies underlying the licensee’s SCWE 

expectations; the licensee’s governing 

SCWE policy; the avenues available to 

contractor staff to raise concerns; and 

the licensee’s expectations for 

contractor management and employee 

behavior regarding raising safety 

concerns. The contractor training 

should also include an explanation of 

licensee contractual rights to oversee the 

contractor’s SCWE. Training should be 

conducted during business hours. 

Involvement of Senior Management in 

Employment Actions 

Management should ensure that 

programs and processes involving 

changes to employment conditions, 

such as disciplinary policies or 

reductions-in-force plans, are welldefined, defensible, and communicated 

to the workforce prior to their 

implementation. An effective way for 

senior licensee management to prevent 

retaliatory actions by their supervisory 

staff is to review proposed employment 

61058 Federal Register / Vol. 69, No. 198 / Thursday, October 14, 2004 / Notices 

actions, such as those above an oral 

reprimand, before the actions are taken 

to determine whether any of the factors 

of retaliation are present. 

The factors of retaliation are as 

follows: 

• Protected activity—Has the 

individual against whom the action is 

being taken engaged in a protected 

activity? 

• Adverse action—Is an adverse 

employment action being proposed? 

• Licensee or contractor knowledge of 

protected activity—Such knowledge can 

be attributed to other than the 

individual’s direct supervisor. 

• Relationship between the adverse 

action and the protected activity—Is 

there evidence that the adverse action is 

being proposed because of the protected 

activity? 

Senior management review of such 

employment actions should ensure that 

programs or processes are being 

followed to ensure actions are wellfounded and nonretaliatory. In addition, 

the review should ensure that the 

proposed action comports with normal 

practice within the limits allowed by 

the defined process and is consistent 

with actions taken previously. The 

review should assess whether the 

supervisor requesting the action exhibits 

any sign of unnecessary urgency. The 

employee’s prior performance 

assessments and the proposed action 

should be consistent or inconsistencies 

should be justified and documented. 

Finally, an assessment should be done 

to determine what, if any, effect the 

employment action may have on the 

SCWE. If management determines that 

the action, despite its legitimacy, could 

be perceived as retaliatory by the 

workforce, mitigating actions should be 

considered to minimize potential 

chilling effects on raising safety issues. 

Such mitigating actions may include 

(1) the use of holding periods during 

which the proposed employment action 

is held in abeyance while further 

evaluations are completed; (2) 

communicating with the workforce 

about the action being taken, with 

appropriate consideration of privacy 

rights; (3) reiterating the SCWE policy; 

and (4) explaining the action to the 

affected employee(s) and clearly 

articulating the nonretaliatory basis for 

the action. After an employment action 

is taken, management should initiate a 

review of the facts and, if warranted, 

reconsider the action that was taken. If 

retaliation is alleged, the licensee 

should assure that the appropriate level 

of senior management is involved in 

efforts to minimize a potential chilling 

effect that the employment action may 

have on raising safety issues. 

Definitions 

Adverse action—An action initiated 

by the employer that detrimentally 

affects the employee’s terms, conditions, 

or privileges of employment. Such 

actions include but are not limited to 

termination, demotion, denial of a 

promotion, lower performance 

appraisal, transfer to a less desirable job, 

and denial of access. 

Alternative dispute resolution 

(ADR)—Refers to a number of processes, 

such as mediation and facilitated 

dialogues, that can be used to assist 

parties in resolving disputes. 

Corrective action program (CAP)—A 

formal system for issues that may 

require remedial action that are raised 

by employees that tracks issues from 

their identification through evaluation 

and resolution. The issues are usually 

prioritized according to the relative 

safety significance. 

Differing professional opinion 

(DPO)—A formal alternative process 

which provides an avenue of appeal for 

an employee to disagree with a position 

taken by management. 

Employee concerns program (ECP)—

An alternative process to line 

management and the CAP for employees 

to seek an impartial review of safety 

concerns. Many ECPs handle a variety 

of concerns and may act as brokers 

seeking resolution on behalf of the 

employees. 

Hostile work environment—An 

intentional discriminatory work 

environment that is either pervasive and 

regular or acute but severe and 

detrimentally affects the employee 

because of protected activity. 

Memorandum of understanding 

(MOU)—A written agreement which 

describes how organizations, offices, or 

agencies will cooperate on matters of 

mutual interest and responsibility. 

Performance indicators (PI)—A series 

of predetermined measured items which 

usually provide managers with insight 

into what may be occurring within an 

organization and give an early sign of 

problems that, if acted upon, could 

relieve stress within an organization. 

Protected activity—Includes initiating 

or testifying in an NRC or DOL 

proceeding regarding issues under the 

NRC’s jurisdiction, documenting 

nuclear safety concerns, the internal or 

external expression of nuclear safety 

concerns, and refusing to engage in any 

practice made illegal under the Atomic 

Energy Act or the Energy Reorganization 

Act if the employee has identified the 

alleged illegality to the employer. 

Safety conscious work environment 

(SCWE)—An environment in which 

employees are encouraged to raise safety 

concerns both to their own management 

and to the NRC without fear of 

retaliation.

Dated at Rockville, Maryland, this 7th day 

of October, 2004.

For the Nuclear Regulatory Commission. 

Francis M. Costello, 

Acting Chief, Operating Reactor 

Improvements, Division of Regulatory 

Improvement Programs, Office of Nuclear 

Reactor Regulation.

[FR Doc. 04–23005 Filed 10–13–04; 8:45 am] 

BILLING CODE 7590–01–P

SECURITIES AND EXCHANGE 

COMMISSION 

Submission for OMB Review; 

Comment Request 

Upon written request, copies available 

from: Securities and Exchange 

Commission, Office of Filings and 

Information Services, Washington, DC 

20549.

Approval of Existing Information Collection: 

Rule 17a–8, SEC File No. 270–225, OMB 

Control No. 3235–0235.

Notice is hereby given that pursuant 

to the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501–3520), the Securities 

and Exchange Commission 

(‘‘Commission’’) has submitted to the 

Office of Management and Budget 

requests for extension and approval of 

the existing collection of information 

discussed below. 

Rule 17a–8 [17 CFR 270.17a–8] under 

the Investment Company Act of 1940 

(the ‘‘Act’’) is entitled ‘‘Mergers of 

affiliated companies.’’ Rule 17a–8 

exempts certain mergers and similar 

business combinations (‘‘mergers’’) of 

affiliated registered investment 

companies (‘‘funds’’) from section 17(a) 

prohibitions on purchases and sales 

between a fund and its affiliates. The 

rule requires fund directors to consider 

certain issues and to record their 

findings in board minutes. The rule 

requires the directors of any fund 

merging with an unregistered entity to 

approve procedures for the valuation of 

assets received from that entity. These 

procedures must provide for the 

preparation of a report by an 

independent evaluator that sets forth the 

fair value of each such asset for which 

market quotations are not readily 

available. The rule also requires a fund 

being acquired to obtain approval of the 

merger transaction by a majority of its 

outstanding voting securities, except in 

certain situations, and requires any 

surviving fund to preserve written 

records describing the merger and its