Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices 8785

designated Atomic Safety and Licensing

Board will issue a notice of hearing or

an appropriate order.

As required by 10 CFR 2.714, a

petition for leave to intervene shall set

forth with particularity the interest of

the petitioner in the proceeding, and

how that interest may be affected by the

results of the proceeding. The petition

should specifically explain the reasons

why intervention should be permitted

with particular reference to the

following factors: (1) The nature of the

petitioner’s right under the Act to be

made a party to the proceeding; (2) the

nature and extent of the petitioner’s

property, financial, or other interest in

the proceeding; and (3) the possible

effect of any order which may be

entered in the proceeding on the

petitioner’s interest. The petition should

also identify the specific aspect(s) of the

subject matter of the proceeding as to

which petitioner wishes to intervene.

Any person who has filed a petition for

leave to intervene or who has been

admitted as a party may amend the

petition without requesting leave of the

Board up to 15 days prior to the first

prehearing conference scheduled in the

proceeding, but such an amended

petition must satisfy the specificity

requirements described above.

Not later than 15 days prior to the first

prehearing conference scheduled in the

proceeding, a petitioner shall file a

supplement to the petition to intervene

which must include a list of the

contentions which are sought to be

litigated in the matter. Each contention

must consist of a specific statement of

the issue of law or fact to be raised or

controverted. In addition, the petitioner

shall provide a brief explanation of the

bases of the contention and a concise

statement of the alleged facts or expert

opinion which support the contention

and on which the petitioner intends to

rely in proving the contention at the

hearing. The petitioner must also

provide references to those specific

sources and documents of which the

petitioner is aware and on which the

petitioner intends to rely to establish

those facts or expert opinion. Petitioner

must provide sufficient information to

show that a genuine dispute exists with

the applicant on a material issue of law

or fact. Contentions shall be limited to

matters within the scope of the

amendment under consideration. The

contention must be one which, if

proven, would entitle the petitioner to

relief. A petitioner who fails to file such

a supplement which satisfies these

requirements with respect to at least one

contention will not be permitted to

participate as a party.

Those permitted to intervene become

parties to the proceeding, subject to any

limitations in the order granting leave to

intervene, and have the opportunity to

participate fully in the conduct of the

hearing, including the opportunity to

present evidence and cross-examine

witnesses.

If the amendment is issued before the

expiration of the 30-day hearing period,

the Commission will make a final

determination on the issue of no

significant hazards consideration. If a

hearing is requested, the final

determination will serve to decide when

the hearing is held.

If the final determination is that the

amendment request involves no

significant hazards consideration, the

Commission may issue the amendment

and make it immediately effective,

notwithstanding the request for a

hearing. Any hearing held would take

place after issuance of the amendment.

If the final determination is that the

amendment request involves a

significant hazards consideration, any

hearing held would take place before

the issuance of any amendment.

A request for a hearing or a petition

for leave to intervene must be filed with

the Secretary of the Commission, U.S.

Nuclear Regulatory Commission,

Washington, DC 20555–0001, Attention:

Docketing and Services Branch, or may

be delivered to the Commission’s Public

Document Room, the Gelman Building,

2120 L Street, NW., Washington, DC, by

the above date. Where petitions are filed

during the last 10 days of the notice

period, it is requested that the petitioner

promptly so inform the Commission by

a toll-free telephone call to Western

Union at 1-(800) 248-5100 (in Missouri

1-(800) 342–6700). The Western Union

operator should be given Datagram

Identification Number N1023 and the

following message addressed to the

Director, Project Directorate III–3, U.S.

Nuclear Regulatory Commission,

Washington, DC 20555–0001:

petitioner’s name and telephone

number, date petition was mailed, plant

name, and publication date and page

number of this Federal Register notice.

A copy of the petition should also be

sent to the Office of the General

Counsel, U.S. Nuclear Regulatory

Commission, Washington, DC 20555–

0001, and to Jay E. Silberg, Esquire,

Shaw, Pittman, Potts and Trowbridge,

2300 N Street, NW., Washington, DC

20037, attorney for the licensee.

Nontimely filings of petitions for

leave to intervene, amended petitions,

supplemental petitions and/or requests

for hearing will not be entertained

absent a determination by the

Commission, the presiding officer or the

presiding Atomic Safety and Licensing

Board that the petition and/or request

should be granted based upon a

balancing of the factors specified in 10

CFR 2.714(a)(1)(i)–(v) and 2.714(d).

For further details with respect to this

action, see the application for

amendment dated February 14, 1997,

which is available for public inspection

at the Commission’s Public Document

Room, the Gelman Building, 2120 L

Street, NW., Washington, DC, and at the

local public document room, located at

the University of Toledo, William

Carlson Library, Government

Documents Collection, 2801 West

Bancroft Avenue, Toledo, Ohio 43606.

Dated at Rockville, Maryland, this 20th day

of February 1997.

For the Nuclear Regulatory Commission.

Allen G. Hansen,

Project Manager, Project Directorate III–3,

Division of Reactor Projects—III/IV, Office of

Nuclear Reactor Regulation.

[FR Doc. 97–4703 Filed 2–25–97; 8:45 am]

BILLING CODE 7590–01–P

Safety-Conscious Work Environment

AGENCY: Nuclear Regulatory

Commission.

ACTION: Request for public comment.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is considering

several strategies in addressing the need

for its licensees to establish and

maintain a safety-conscious work

environment. As discussed herein, the

Commission is evaluating the

development of a standardized

approach that would (1) require

licensees to establish and maintain a

safety-conscious work environment

with clearly defined attributes; (2)

establish certain indicators that may be

monitored and that, when considered

collectively, may provide evidence of an

emerging adverse trend; and (3) outline

specific remedial actions that the

Commission may require when it

determines that a particular licensee has

failed to establish or maintain a safetyconscious work environment. Before

proceeding further, the NRC is seeking

comments and suggestions on the

various strategies being considered.

DATES: The comment period expires

May 27, 1997. Comments received after

this date will be considered if it is

practical to do so, but the Commission

is able to assure consideration only for

comments received on or before this

date.

ADDRESSES: Submit written comments

to: David Meyer, Chief, Rules Review

and Directives Branch, Division of
8786 Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices

1 In NUREG–1499, the Allegation Review Team

provided an analysis of indications that a licensee’s

safety-conscious work environment may be

deteriorating. Similar discussions and additional

analysis appear in the September 1996 report of the

Millstone Independent Review Group (MIRG).

Freedom of Information and Publication

Services, Office of Administration, Mail

Stop: T6D59, U. S. Nuclear Regulatory

Commission, Washington, DC 20555.

Hand deliver comments to: 11555

Rockville Pike, Rockville, Maryland,

between 7:45 am and 4:15 pm, Federal

workdays. Copies of comments received

may be examined at the NRC Public

Document Room, 2120 L Street, NW,

(Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT:

James Lieberman, Director, Office of

Enforcement, U.S. Nuclear Regulatory

Commission, Washington, DC 20555,

(301) 504–2741.

SUPPLEMENTARY INFORMATION:

I. Background

In May 1996, the Commission issued

a policy statement on the ‘‘Freedom of

Employees in the Nuclear Industry to

Raise Safety Concerns Without Fear of

Retaliation’’ [FR 24336]. This policy

statement had first been published in

draft in February 1995 [FR 7592], and

was based on modified

recommendations of the Allegation

Review Team report published as

NUREG–1499. The basic thrust of the

policy statement was to clarify the

* * * Commission’s expectation that

licensees and other employers subject to NRC

authority will establish and maintain a

safety-conscious work environment in which

employees feel free to raise concerns both to

their management and the NRC without fear

of retaliation.

The Commission emphasized that

problems in the work environment are

most effectively prevented, identified,

and resolved from within the licensee’s

organization, rather than by government

or other outside involvement. The

points of focus in the policy statement—

effective processes for identifying and

resolving concerns, improvements in

contractor awareness, senior licensee

management involvement in resolving

allegations of harassment and

intimidation (H&I), and employees’

responsibilities in raising safety

concerns—were considered generally

applicable to all licensees and

contractors.

While the philosophy and message of

the policy statement continue to be

appropriate, the findings of the

Millstone Independent Review Group

(MIRG) and compilation of industrywide allegation data suggest that not all

licensees are successful in maintaining

a safety-conscious work environment as

described in the policy statement. As

discussed in NUREG–1499,

the perception of discrimination, as viewed

by those involved and other employees, may

be more important than whether

discrimination actually occurred in setting

the tone for the work environment.

When this perception becomes

widespread in a licensee’s organization,

it becomes exceedingly difficult for

licensee management (1) to obtain the

cooperation of their employees in

identifying and eliminating problems

adversely affecting the safety-conscious

work environment, (2) to reverse the

perception that raising safety concerns

may cause retaliation (or that

management does not welcome

concerns being raised), and (3) to regain

the trust and confidence of the

workforce. Experience at several NRC

licensed facilities suggests that

additional regulatory actions may be

warranted when there is evidence that

the licensee may not be maintaining a

safety-conscious work environment.

II. Discussion of Using a Standardized

Approach to This Issue

The Commission believes that the

NRC should focus more attention on,

and, if possible, devise additional

mechanisms to identify, the emergence

of adverse trends in licensees’ abilities

to maintain a safety-conscious work

environment.1 While identifying these

emerging trends is a difficult task, the

Commission believes that the effort

required will be much less than that

required in ‘‘turning around’’ a facility

where the safety-conscious work

environment has already deteriorated.

Moreover, if indicators can be identified

that, when monitored, will provide a

more timely, reliable alert to the NRC of

emerging problems in a licensee’s

safety-conscious work environment, the

Commission believes that appropriate

intervention will result in a significant

contribution to safety and will be well

worth the effort.

Evaluating the safety consciousness of

a licensee’s work environment is highly

subjective, and achieving reliability in

such an evaluation requires careful

judgment. Any one piece of data (e.g., a

relatively high number of allegations

made to the NRC from a given facility)

can be ambiguously interpreted, and

focusing on individual data to the

exclusion of other information can be

misleading. As discussed below, the

Commission believes that judgments

made in this area should be the result

of periodic reviews by senior NRC

management. In addition, the analyses

made in this area may become more

reliable and consistent if the

Commission clarifies and promotes (1) a

standard definition and attributes of a

safety-conscious work environment; (2)

criteria to be considered as indicators

that a licensee’s safety-conscious work

environment may be deteriorating; and

(3) NRC actions to be considered in

dealing with situations where these

criteria are not met (i.e., where signs

indicate the emergence of an adverse

trend).

As used in this context, a safetyconscious work environment is defined

in the Commission’s May 1996 Policy

Statement as a work environment in

which employees are encouraged to

raise concerns and where such concerns

are promptly reviewed, given the proper

priority based on their potential safety

significance, and appropriately resolved

with timely feedback to employees.

Attributes of a safety-conscious work

environment include (1) a management

attitude that promotes employee

involvement and confidence in raising

and resolving concerns; (2) a clearly

communicated management policy that

safety has the utmost priority,

overriding, if necessary, the demands of

production and project schedules; (3) a

strong, independent quality assurance

organization and program; (4) a training

program that encourages a positive

attitude toward safety; and (5) a safety

ethic at all levels that is characterized

by an inherently questioning attitude,

attention to detail, prevention of

complacency, a commitment to

excellence, and personal accountability

in safety matters.

Departures from such a safetyconscious work environment are not

always easy to detect. However, certain

indicators, particularly when

considered collectively, may be viewed

as providing evidence of an emerging

adverse trend. These include: (1)

Adverse findings by the Department of

Labor (DOL) or NRC’s Office of

Investigation (OI) concluding that

discrimination has occurred against

employees for engaging in protected

activity; (2) in particular, a DOL or OI

finding that a hostile work environment

existed for a licensee employee, or that

senior licensee management was

involved in the discrimination; (3) a

significant increase in the rate (or a

sustained high number) of complaints to

the NRC that licensee employees are

being subjected to harassment and

intimidation (H&I); (4) a significant

increase (or a sustained high number) of

technical allegations made to the NRC,

particularly if accompanied by low

usage or a decrease in use of the

licensee’s employee concern program or

other licensee channels for reporting

concerns; and (5) other indications that
Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices 8787

2However, these symptoms may be advance

indications, and any resulting decline in

operational or safety performance may not emerge

immediately. For this reason, the absence of

operational or safety performance problems should

not, by itself, be taken as assurance that the safetyconscious work environment has not deteriorated.

3Establishing and publishing a standardized

approach clarifies the Commission’s intention to

respond to particular situations with particular

actions. As a result of this clarification, any

subsequent actions the Commission takes that are

consistent with this expressed intention are less

likely to be seen as arbitrary or prejudicially

motivated, and therefore are less likely to be

challenged. This logic is consistent with previous

Commission experience in promulgating and

implementing the NRC Enforcement Policy (NUREG

1600).

the licensee’s employee concerns

program or other programs for

identifying and resolving problems are

ineffective. Such indications might

include: delays in or absence of

feedback for concerns raised to the ECP;

breaches of confidentiality for concerns

raised to the ECP; the lack of effective

evaluation, follow-up, or corrective

action for concerns raised to the ECP or

findings made by the licensee’s QA

organization; overall licensee

ineffectiveness in identifying safety

issues; the occurrence of repetitive or

willful violations; a licensee emphasis

on cost-cutting measures at the expense

of safety considerations; and/or poor

communication mechanisms within or

among licensee groups. In some cases,

these indications may be identified

during routine inspections.

The licensee’s departure from a

safety-conscious work environment can

develop gradually over a period of years

and with varying degrees of licensee

management awareness. As stated

above, any one of the symptoms given

in the preceding paragraph, taken by

itself, may not indicate deterioration in

the licensee’s overall safety-conscious

work environment, particularly if not

accompanied by overall problems in

operational or safety performance.2

Related judgments as to the need for

NRC intervention should not be made in

isolation. The Commission believes that

such judgments, as well as the ensuing

decisions on what action would be

appropriate in a given situation, would

be appropriate topics of discussion at

the NRC’s periodic Senior Management

Meetings.

Once the judgment is made that a

licensee’s safety-conscious work

environment has deteriorated, the

Commission’s choice of action would be

based on the symptoms that led to that

judgment. Under this approach,

however, the Commission would

identify and promote standard options

for agency action rather than treating

each licensee situation on a case-by-case

basis. Those options might include (but

would not be limited to): (1) Requiring

the licensee to establish a formal

employee concerns program (if one does

not already exist); (2) ordering the

licensee to conduct an independent

survey of the environment for raising

concerns, with periodic follow-up

surveys to monitor progress; (3) ordering

the licensee to establish an independent

group for oversight of maintaining a

safety-conscious work environment

(similar to that prescribed by the

October 24, 1996, Millstone order); or

(4) mandating that the licensee establish

a ‘‘holding period’’ policy to be applied

in cases where an employee complains

of being discriminated against for

engaging in protected activity

(additional discussion of the holding

period concept is given below).

III. Establishing a Regulation on SafetyConscious Work Environment

One strategy to standardizing the

Commission’s approach to this area

would be to initiate a rulemaking

process, in which the regulations of 10

CFR Part 50, ‘‘Domestic Licensing of

Production and Utilization Facilities,’’

would be amended. The possible value

of promulgating this strategy as a

regulation is as follows. First, it would

codify the safety-conscious work

environment as a requirement, clearly

linked to the licensee’s safety ethic and

to the overall fitness of the licensee to

operate the facility. Second, such a

regulation could successfully

differentiate between licensees who

perform well in this area and those who

are cause for concern, in that

prescriptive requirements would only

be remedial (i.e., prescribed for those

licensees who fail to establish and

maintain a sufficiently safety-conscious

work environment on their own efforts).

Third, for those cases requiring

Commission intervention in the form of

issuing orders, the presence of a

standardized process (i.e., as codified in

a regulation or suggested in a policy

statement) may result in less litigation

than would result if such orders were

devised and issued case by case in the

absence of such a standardized

approach.3

The Commission’s experience

indicates that licensees may

successfully use differing methods in

achieving a safety-conscious work

environment, and what may be

necessary for some licensees is

unnecessary for others. Under the

approach discussed herein, however, a

regulation could be written such that,

while the Commission is prepared to

take decisive action where licensees

have been unsuccessful, these actions

are not invoked so long as licensees

meet the basic criteria of a safetyconscious work environment.

Finally, while such a regulation might

provide additional standardization and

consistency where Commission action is

necessary, the primary purpose would

be to focus the licensee’s attention in

this area and reduce the need for

Commission involvement in directing

licensees’ actions in this area. The

intended effect of this rule would be for

licensees (1) to become more aware of

the importance the Commission places

on establishing and maintaining a

safety-conscious work environment, (2)

to become more sensitive to indications

of adverse trends emerging at their own

facilities, and (3) to become more

effective in taking actions to correct

such trends and preserve the safetyconscious work environment before it

deteriorates to a point that demands

Commission intervention. This

intention is consistent with the

Commission’s recognition, as presented

in the May 1996 Policy Statement, that

departures from a safety-conscious work

environment are much more effectively

corrected from within a licensee’s

organization than by the intervention of

government or another outside agency.

IV. Inclusion in the NRC Enforcement

Policy or Issuance of a Separate Policy

Statement

Another strategy toward standardizing

the Commission’s approach to this area

would be to revise NUREG–1600,

‘‘General Statement of Policy and

Procedures for NRC Actions’’ (generally

known as the NRC Enforcement Policy),

to include this standardized approach.

While this strategy would not be

binding on licensees in the sense of

requiring, by regulation, a safetyconscious work environment, it would

retain most of the other advantages of

codification described above. This

strategy would still successfully

differentiate between licensees who

perform well in this area and licensees

who give cause for concern; it should

heighten licensee awareness of the

Commission’s approach to evaluating

licensee performance in this area; it

should make licensees more sensitive to

indicators of emerging adverse trends at

their facilities; and it would provide

licensees the opportunity to correct

such trends before the safety-conscious

work environment deteriorates to a

point requiring Commission

intervention.

The logic of including such an

approach in the NRC Enforcement

Policy is that it would contain standard

criteria that, after consideration, could
8788 Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices

4 In other words, the holding period would be in

effect at least until the initial decision made under

the DOL process. Under Section 211 of the Energy

Reorganization Act, the DOL only provides a

temporarily effective remedy to the complainant

(i.e., a reinstatement of pay and benefits) after an

Administrative Law Judge’s (ALJ’s) adverse finding

that discrimination has occurred. Based on a

NUREG 1499 recommendation, the Commission is

considering legislation, to be developed in

coordination with the DOL, in which certain

adjustments would be made to the current DOL

process, in that the DOL would be provided

additional time to conduct a more in-depth initial

investigation, and a temporarily effective remedy

could be provided to the complainant based on the

initial investigation. Thus, if the holding period

were extended to the conclusion of the initial DOL

investigation, an employee who alleged

discrimination for engaging in protected activity

would not be removed from pay and benefits at any

point in the subsequent investigation and

adjudication process, so long as the DOL continued

to find in the employee’s favor.

It is important to explain that the Commission is

not attempting to preempt the DOL’s role in

providing a remedy to the complainant. The

purpose of the holding period is to neutralize the

conflict in the workplace until the dispute is

resolved without presumption as to the outcome,

thereby minimizing the chilling effect on the rest

of the workforce. The chilling effect can arise, in

this situation, when other employees perceive that

a fellow worker has been allegedly discriminated

against for engaging in protected activity, and

immediately placed at a disadvantage in pursuing

a resolution by the loss of pay and benefits.

5However, if a dispute arose as to whether the

licensee had a legitimate purpose (i.e., the

employee maintained that the action was based on

engaging in protected activity), the licensee would

still be required to maintain pay and benefits. In

such a case, administrative leave with pay and

benefits might be the best option.

6As discussed in Sections III and IV, the holding

period would only be one of several options that the

result in issuing orders to licensees. An

alternative, however, would be to issue

this approach in a separate Commission

policy statement, to ensure that NRC

monitoring of licensee performance in

this area is separately administered and

evaluated.

V. Explanation of the ‘‘Holding Period’’

Concept

Within the strategies being evaluated

and discussed herein, the concept of a

‘‘holding period’’ warrants additional

clarification. The holding period

concept (sometimes also referred to as a

‘‘safe harbor’’ provision) was first

introduced by the Allegation Review

Team as a recommendation of NUREG–

1499. Among other aspects, the

Allegation Review Team recommended

that, in applicable cases, the NRC

Executive Director for Operations (or

other senior NRC management) send a

letter to senior licensee management

reminding them of the Commission’s

policies on discrimination and the use

of the holding period, and requesting a

report to the NRC detailing the

licensee’s course of action. The holding

period concept was carried forward to

the Commission’s May 1996 Policy

Statement as a policy or action that a

licensee might voluntarily choose to

introduce; however, the Commission

rejected the provision of sending a letter

encouraging the licensee’s use of the

holding period in applicable cases. The

Commission believes that several

alternative strategies for mandating use

of a holding period policy may merit

reconsideration, particularly as an

option for dealing with specific cases

where a licensee’s environment for

raising safety concerns has significantly

deteriorated.

In general, a licensee’s holding period

policy would provide that, when an

employee complains that he or she has

been discriminated against for engaging

in protected activity, the licensee will

maintain that employee’s pay and

benefits until the licensee has

investigated the complaint,

reconsidered the facts, negotiated with

the employee, and informed the

employee of a final decision on the

matter. After the employee has been

notified of the licensee’s decision, the

holding period would continue for an

additional 2 weeks to allow a reasonable

time for the employee to file with the

DOL. If the employee files within that

time, the licensee would continue the

holding period until the DOL Area

Office Director has made a finding based

on the Area Office investigation.4

As discussed in NUREG–1499, the

holding period is designed to minimize

onsite conflict (and any associated

chilling effect) generated by the

perception that an employee may have

been retaliated against for raising

concerns. In addition, the holding

period may be used to demonstrate

management support for maintaining a

safety-conscious work environment. As

stated in the Commission’s May 1996

Policy Statement:

By this approach, management would be

acknowledging that although a dispute exists

as to whether discrimination occurred, in the

interest of not discouraging other employees

from raising concerns, the employee involved

in the dispute will not lose pay and benefits

while the action is being reconsidered or the

dispute is being resolved.

In the past, both the staff

recommendations and the Commission’s

policy have been to make the use of a

holding period entirely voluntary. Even

under the regulation or policy statement

strategies discussed in Sections III and

IV above, the use of a holding period (as

well as other measures designed to

promote a safety-conscious work

environment) would be entirely

voluntary for most licensees. However,

in cases where the Commission

determined that the licensee’s safetyconscious work environment was

deteriorating to the point of warranting

additional NRC intervention, such a

regulation or policy would provide that

ordering the licensee’s establishment of

a holding period policy would be one of

the options available at the discretion of

the Commission.

Nothing in the application of such a

Commission order or the resulting

licensee holding period policy would

mandate that a licensee employee must

participate in or agree to the use of a

holding period in a given case. In

addition, for any case in which the

Commission ordered the licensee to

establish such a holding period policy,

the licensee would continue to have the

option as to whether a given

complainant should be restored to his or

her previous position, be assigned a new

position, or be given administrative

leave with pay and benefits.

Furthermore, the Commission would

continue to hold that, when a holding

period policy has been established, the

employer’s action of not restoring a

complainant to his or her previous

position would not be considered an

additional act of discrimination if the

DOL AOD or Administrative Law Judge

(ALJ) subsequently found in favor of the

complainant, provided that (1) the

employee had agreed to the provisions

of the holding period, (2) pay and

benefits were maintained, and (3) the

employer restored the employee to the

previous position without career

prejudice upon a DOL finding of

discrimination. Finally, the licensee

bears responsibility for making

legitimate personnel decisions,

including termination or reassignment

of an employee whose presence in the

workplace could adversely affect safety.

Neither the use of a holding period

policy nor any other licensee action

required by NRC order would relieve

the licensee of this responsibility.5 The

function of the holding period is to

counteract the chilling effect that may

result when employees perceive that a

fellow employee may have been

terminated as the result of raising safety

concerns, and thus placed at a financial

disadvantage while seeking redress.

The Commission recognizes that the

holding period concept has certain

perceived drawbacks, as discussed by

the Allegation Review Team in NUREG–

1499. Some potential exists for abuse of

a holding period policy, and it may be

viewed as unfair to ask licensees to

continue pay and benefits for employees

whom the licensee believes are

undeserving.6 In addition, other factors
Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices 8789

NRC would have at its disposal under such a

regulation or policy. Based on considering the

specific attributes of a particular licensee’s

environment, the NRC might decide that requiring

the use of a site-wide employee survey, an

independent third-party oversight of the licensee’s

employee concern program, or some other measure

should be required before, after, instead of, or in

conjunction with a holding period policy.

7To be effective, the complainant should not be

required to forfeit any pay or benefits received

during the holding period if the DOL subsequently

found that the licensee did not discriminate against

the complainant. While such an approach could be

perceived as unfair to the licensee, the Commission

believes that such a burden is warranted in view of

the benefit to the workplace environment.

(such as licensee down-sizing actions)

may contribute to the occurrence of a

significant increase in complaints of

discrimination. The Commission would

give these and other factors careful

consideration before requiring this

approach for any specific licensee.7

However, the Commission believes that

where there has been a significant

failure to maintain a safety-conscious

work environment, these drawbacks,

including any financial burden incurred

by the licensee, would be clearly offset

by the benefits of instilling a general

perception that senior licensee

management is serious about becoming

involved, reconsidering the facts,

finding a resolution, and minimizing the

adverse impact on the complainant

during these deliberations. Where a

chilling effect would otherwise have

resulted from a more confrontational

licensee approach, these benefits are

clear; in addition, the willingness of

licensee management to work toward

internal resolution of such a conflict

may result in financial savings (1) by

avoiding lengthy, expensive litigation in

the case at hand and (2) by offsetting the

possibility of additional cases that may

result from a chilling effect. Most

importantly, the avoidance of a chilling

effect may result in having safety issues

identified that might not otherwise have

been raised.

VI. Discussion of Alternative Strategy

in Requiring a Holding Period Policy

and Periodic Site Surveys

The Commission has considered an

alternative strategy, in which all

licensees would be required to institute

a holding period policy and periodic

site surveys, rather than only those

licensees who perform poorly in this

area. This approach would not

differentiate to the same extent between

those licensees who perform well in this

area and those who give cause for

concern. However, this approach would

ensure that all licensees periodically

monitor their work environments to

assess the degree to which employees

feel free to raise safety concerns. In

addition, this approach would ensure

that, for any situation in which an

employee believes that he or she has

been discriminated against for raising

safety concerns, that employee would

not be placed at a financial disadvantage

(i.e., by the loss of pay and benefits)

while pursuing a resolution. Under this

approach, such an employee would

continue to receive pay and benefits

under the holding period even if the

licensee had never before had such a

complaint.

As stated earlier, the purpose of the

holding period is to neutralize the

conflict in the work environment until

the dispute is resolved without

presumption as to the outcome, thereby

minimizing the chilling effect on the

rest of the workforce. The chilling effect

can arise when other employees

perceive that a fellow worker has been

discriminated against for engaging in

protected activity, and then

immediately placed at a disadvantage in

pursuing a resolution by the loss of pay

and benefits. By requiring all licensees

to establish and implement a holding

period policy, this alternative approach

would attempt to offset this potential

chilling effect on an industry-wide

basis. Arguably, the benefits may not

outweigh the costs in this approach,

particularly in cases where the

discrimination issue is a relatively

isolated occurrence in an otherwise

safety-conscious environment.

VII. Requests for Comments on the

Approaches Discussed Herein

The Commission is considering

various strategies that would clarify the

responsibility of licensees to establish

and maintain a safety-conscious work

environment. The purpose of describing

these strategies and posing certain

questions is to illustrate the evaluation

that has occurred to date, and to request

public comment on the potential

effectiveness of such actions, the

advantages and disadvantages of the

strategies described, and any

suggestions on additions or deletions

that would make these strategies more

effective in achieving their stated

purpose. Commenters should feel free to

submit their responses to these

questions anonymously; however, any

information provided as to a

commenter’s background or degree of

experience in this area will be helpful

in analyzing and understanding the

comments.

1. Should the Commission Proceed

with Establishing a Standardized

Approach to Ensuring That Licensees

Establish and Maintain a SafetyConscious Work Environment?

2. If Such an Approach Were

Adopted, Would It Be Most Effective as:

(a) A Proposed Rulemaking that Would

Amend Part 50; (b) a revision to the

NRC Enforcement Policy; or (c) a

separately issued Commission policy

statement?

3. What Additions or Deletions to the

Draft Language of Such a Regulation or

Policy, as Presented in Section IX,

Below, Would Increase Its

Effectiveness?

4. What Are the Advantages or

Disadvantages of Implementing Such a

Standardized Approach? (Comments are

specifically requested as to whether the

use of a holding period would achieve

the objective of reducing the potential

for a chilling effect in the work

environment.)

5. What other means or indicators

might the NRC use to evaluate licensee

performance in this area other than the

indicators mentioned in the language of

Section IX, below?

6. What Would Be the Advantages or

Disadvantages of Implementing the

Alternative Approach to Requiring the

Holding Period, as Described in Section

VI, Above?

7. What Other Approaches Not

Considered Here Would Be More

Effective in Ensuring That Licensees

Establish and Maintain a SafetyConscious Work Environment?

VIII. Request for Regulatory Analysis

Information

If a change of requirements is needed,

the NRC will prepare a regulatory

analysis to support any proposed or

final rule. The analysis will examine the

costs and benefits of regulatory

alternatives available to the

Commission.

The NRC requests public comment on

the costs and benefits, normal business

practices, new trends, and other

information that should be considered

in any such regulatory analysis.

Comments may be submitted as

indicated in the ADDRESSES heading.

IX. Specific Examples of Possible

Language for a Regulation or

Commission Policy

The NRC has developed language that

may be applicable to a revision of Part

50 or (with necessary modifications) to

a policy statement. This draft text

reflects many of the issues as described.

The NRC solicits comments on the

following text, including the extent to

which the text addresses the issues

described. The NRC also solicits

suggestions of alternative text that

would address these issues.
8790 Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices

Proposed Language: Safety-Conscious

Work Environment

(a) Licensees shall establish and

maintain a safety-conscious work

environment in which employees are

encouraged to raise safety and

regulatory concerns, and where such

concerns are promptly reviewed, given

priority based on their potential safety

significance, and appropriately resolved

with timely feedback to the originator of

the concern. Attributes of a safetyconscious work environment include:

(1) A management attitude that

promotes employee involvement and

confidence in raising and resolving

concerns;

(2) A clearly communicated

management policy that safety has the

utmost priority, overriding, if necessary,

the demands of production and project

schedules;

(3) A strong, independent quality

assurance organization and program;

(4) A training program that

encourages a positive attitude toward

safety;

(5) A safety ethic at all levels that is

characterized by an inherently

questioning attitude, attention to detail,

prevention of complacency, a

commitment to excellence, and personal

accountability in safety matters.

(b) When circumstances occur that

could adversely impact the safetyconscious environment, or when

conditions arise that indicate the

potential emergence of an adverse trend

in the safety-conscious work

environment, the licensee shall take

action as required to ensure that the

safety-conscious environment is

preserved. Indicators that may be

considered as possible evidence of an

emerging adverse trend include, but are

not limited to:

(1) Adverse findings by the

Department of Labor or the NRC Office

of Investigation (OI) concluding that

discrimination has occurred against

employees for engaging in protected

activity, including a finding of the

existence of a hostile work environment;

(2) A significant increase in the rate

(or a sustained high number) of

allegations made to the NRC that

licensee employees are being subjected

to harassment and intimidation for

engaging in protected activity;

(3) A significant increase in the rate

(or a sustained high number) of

allegations made to the NRC concerning

matters of safety or regulatory concern,

particularly if accompanied by low

usage or a decrease in use of the

licensee’s employee concern program

(ECP) or other licensee channels for

reporting safety and regulatory

concerns;

(4) Other indications that the

licensee’s ECP or other programs for

identifying and resolving safety and

regulatory concerns are ineffective.

Such indications might include: delays

in or absence of feedback for concerns

raised to the ECP; breaches of

confidentiality for concerns raised to the

ECP; the lack of effective evaluation,

follow-up, or corrective action for

concerns raised to the ECP or findings

made by the licensee’s QA organization;

overall licensee ineffectiveness in

identifying safety issues; the occurrence

of repetitive or willful violations; a

licensee emphasis on cost-cutting

measures at the expense of safety

considerations; and/or poor

communication mechanisms within or

among licensee groups.

(c) The presence of one or more of the

indicators discussed in paragraph (b) of

this section may or may not, in

isolation, be considered evidence of

deterioration in the licensee’s safetyconscious work environment.

Evaluation of the licensee’s safetyconscious work environment should

consider these indicators in the context

of the overall work environment,

including the presence or absence of

other indicators, and the presence or

absence of related licensee safety and

performance issues.

(d) If, based on a review of indicators

as discussed in paragraphs (b) and (c) of

this section, the Executive Director for

Operations determines that the licensee

has failed to establish and maintain a

safety-conscious work environment as

discussed in paragraph (a) of this

section, the NRC at its discretion may

require the licensee to take action. This

action may include (but is not limited

to) ordering one or more of the

following:

(1) Establishment of a formal

employee concerns program (if one does

not already exist);

(2) Performance of an independent

survey of the licensee’s environment for

raising safety and regulatory concerns,

with periodic follow-up surveys to

monitor change;

(3) Establishment of an independent

group for oversight of licensee

performance in establishing and

maintaining a safety-conscious work

environment;

(4) Establishment of a ‘‘holding

period’’ policy, to be applied in cases

where an employee of the licensee or its

contractor registers a complaint of

having been discriminated against for

engaging in protected activity. The

holding period policy requires that,

when such an employee submits to the

licensee a complaint that he or she has

been discriminated against for engaging

in protected activity, the licensee will

maintain that employee’s pay and

benefits until the licensee has

investigated the complaint,

reconsidered the facts, negotiated with

the employee, and informed the

employee of a final decision on the

matter. After the licensee has informed

the employee of its final decision, the

holding period of continued pay and

benefits will continue for an additional

2 weeks to allow a reasonable time for

the employee to file a complaint of

discrimination with the DOL. If, by the

end of that 2-week period, the employee

has filed with the DOL a complaint of

discrimination for engaging in protected

activity, the licensee will maintain the

holding period of continued pay and

benefits until the DOL has made a

finding based on its initial investigation

of the employee’s complaint.

(5) Additional enforcement action

pursuant to Subpart B of Part 2,

including civil penalties.

Dated at Rockville, Maryland, this 19th day

of February, 1996.

For the Nuclear Regulatory Commission.

James Lieberman,

Director, Office of Enforcement.

[FR Doc. 97–4702 Filed 2–25–97; 8:45 am]

BILLING CODE 7590–01–P

Biweekly Notice; Applications and

Amendments to Facility Operating

Licenses Involving No Significant

Hazards Considerations

I. Background

Pursuant to Public Law 97–415, the

U.S. Nuclear Regulatory Commission

(the Commission or NRC staff) is

publishing this regular biweekly notice.

Public Law 97–415 revised section 189

of the Atomic Energy Act of 1954, as

amended (the Act), to require the

Commission to publish notice of any

amendments issued, or proposed to be

issued, under a new provision of section

189 of the Act. This provision grants the

Commission the authority to issue and

make immediately effective any

amendment to an operating license

upon a determination by the

Commission that such amendment

involves no significant hazards

consideration, notwithstanding the

pendency before the Commission of a

request for a hearing from any person.

This biweekly notice includes all

notices of amendments issued, or

proposed to be issued from February 1,

1997, through February 13, 1997. The

last biweekly notice was published on

February 12, 1997 (62 FR 6567).