[Federal Register Volume 62, Number 56 (Monday, March 24, 1997)]
[Notices]
[Pages 13906-13908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7315]



[[Page 13906]]

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NUCLEAR REGULATORY COMMISSION
[NUREG-1600]


Policy and Procedure for Enforcement Actions; Policy Statement

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement amendment; request for comments.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
General Statement of Policy and Procedure for Enforcement Actions 
(Enforcement Policy) regarding predecisional enforcement conferences 
that are based on findings of discrimination. For appropriate cases, 
this amendment will allow some degree of participation by the 
complainant in the predecisional enforcement conference.

DATES: This amendment is effective on March 24, 1997. Comments are due 
on or before April 23, 1997.

ADDRESSES: Send written comments to: The Secretary of the Commission, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555. ATTN: 
Docketing and Service Branch. 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) 415-2741.

SUPPLEMENTARY INFORMATION: The Commission's Enforcement Policy was 
first issued on September 4, 1980. The Enforcement Policy is published 
as NUREG-1600, ``General Statement of Policy and Procedure for NRC 
Enforcement Actions (60 FR 34381; June 30, 1995).'' Section V of the 
current policy provides that, when the NRC learns of a potential 
violation for which escalated action may be warranted, the NRC will 
normally provide the licensee an opportunity for a predecisional 
enforcement conference prior to taking the enforcement action. These 
predecisional enforcement conferences are a means for the NRC to gain 
additional information that will assist in determining the appropriate 
course of action.
    The Commission is modifying its Enforcement Policy for 
predecisional enforcement conferences in which the conference is based 
on an NRC Office of Investigations (OI) report finding that 
discrimination as defined under 10 CFR 50.7 (or similar provisions in 
Parts 30, 40, 60, 70, or 72) has occurred. In such cases, the OI report 
will normally be made public, subject to withholding certain 
information (i.e., after appropriate redaction), and any resulting 
predecisional enforcement conference will normally be open to public 
observation. In a case where a particular individual is being 
considered potentially responsible for the discrimination, the 
conference will remain closed. In either case (i.e., whether the 
conference is open or closed), the employee or former employee who was 
the subject of the alleged discrimination (hereafter referred to as 
``complainant'') will normally be provided an opportunity to 
participate in the predecisional enforcement conference.
    These enforcement conferences will normally be held in the NRC's 
regional offices. Participation in the conference in person will be at 
the complainant's own expense. This participation will normally be in 
the form of a complainant statement and presentation in followup to the 
licensee's presentation, followed in turn by an opportunity for the 
licensee to rebut the complainant's presentation. In cases where the 
complainant is unable to attend in person, arrangements will be made 
for the complainant's participation by telephone or an opportunity 
given for the complainant to submit a written rebuttal to the 
licensee's presentation. If the licensee chooses to forego an 
enforcement conference and, instead, responds to the NRC's findings in 
writing, the complainant will be provided the opportunity to submit a 
written rebuttal to the licensee's response. For cases involving 
potential discrimination by a contractor or vendor to the licensee, any 
associated predecisional enforcement conference with the contractor or 
vendor would be handled similarly. These arrangements for complainant 
participation in the predecisional enforcement conference are not to be 
conducted or viewed in any respect as an adjudicatory hearing. As with 
any NRC meeting, the presiding officer of the conference may limit 
participation as necessary to control the conduct of the meeting.
    This approach will give both the complainant and the licensee (or 
contractor) the opportunity to present their positions on the 
discrimination issue, and it should provide additional information on 
which the staff may base its initial enforcement decision. It may serve 
to address past concerns that the NRC bases its decision on enforcement 
action solely on the licensee's presentation. At the same time, it 
could lead to additional allegations and issues concerning false or 
misleading statements, and it could lengthen the process. This approach 
may also raise concerns that the licensee will have more extensive 
resources than the complainant, enabling it to better present its 
position. In any event, these enforcement conferences are not 
adjudicatory forums, but rather a means to obtain additional 
information from the perspective of both the licensee and the 
complainant. The Commission intends, therefore, to limit both the 
licensee and the complainant to simple presentations and rebuttals 
without allowing experts to testify on the issues or allowing cross-
examination of witnesses by the licensee or complainant. As with other 
predecisional enforcement conferences, the NRC staff will, where 
appropriate, question licensee's supervisors and their representatives 
to understand as clearly as possible the circumstances of the case.
    Finally, for cases in which there is a full adjudicatory record 
before the Department of Labor, the NRC may not need to hold a 
predecisional enforcement conference. If a conference is held in such 
cases, generally the conference will focus on the licensee's corrective 
action. As with discrimination cases based on OI investigations, the 
complainant may be allowed to participate.

Paperwork Reduction Act Statement

    This policy statement does not contain a new or amended information 
collection requirement subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the 
Office of Management and Budget, approval number 3150-0136. The 
approved information collection requirements contained in this policy 
statement appear in Section VII.C.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement 
Fairness Act of 1996, the NRC has determined that this action is not a 
``major rule'' and has verified this determination with the Office of 
Information and Regulatory Affairs, Office of Management and Budget.

[[Page 13907]]

    Accordingly, the NRC Enforcement Policy, Section V, ``Predecisional 
Enforcement Conferences,'' is amended as follows:

General Statement of Policy and Procedure for NRC Enforcement Actions

* * * * *

V. Predecisional Enforcement Conferences

    Whenever the NRC has learned of the existence of a potential 
violation for which escalated enforcement action appears to be 
warranted, or recurring nonconformance on the part of a vendor, the NRC 
may provide an opportunity for a predecisional enforcement conference 
with the licensee, vendor, or other person before taking enforcement 
action. The purpose of the conference is to obtain information that 
will assist the NRC in determining the appropriate enforcement action, 
such as: (1) A common understanding of facts, root causes and missed 
opportunities associated with the apparent violations, (2) a common 
understanding of corrective actions taken or planned, and (3) a common 
understanding of the significance of issues and the need for lasting 
comprehensive corrective action.
    If the NRC concludes that it has sufficient information to make an 
informed enforcement decision, a conference will not normally be held 
unless the licensee requests it. However, an opportunity for a 
conference will normally be provided before issuing an order based on a 
violation of the rule on Deliberate Misconduct or a civil penalty to an 
unlicensed person. If a conference is not held, the licensee will 
normally be requested to provide a written response to an inspection 
report, if issued, as to the licensee's views on the apparent 
violations and their root causes and a description of planned or 
implemented corrective actions.
    During the predecisional enforcement conference, the licensee, 
vendor, or other persons will be given an opportunity to provide 
information consistent with the purpose of the conference, including an 
explanation to the NRC of the immediate corrective actions (if any) 
that were taken following identification of the potential violation or 
nonconformance and the long-term comprehensive actions that were taken 
or will be taken to prevent recurrence. Licensees, vendors, or other 
persons will be told when a meeting is a predecisional enforcement 
conference.
    A predecisional enforcement conference is a meeting between the NRC 
and the licensee. Conferences are normally held in the regional offices 
and are normally open to public observation. Conferences will not 
normally be open to the public if the enforcement action being 
contemplated:
    (1) Would be taken against an individual, or if the action, though 
not taken against an individual, turns on whether an individual has 
committed wrongdoing;
    (2) Involves significant personnel failures where the NRC has 
requested that the individual(s) involved be present at the conference;
    (3) Is based on the findings of an NRC Office of Investigations 
report that has not been publicly disclosed; or
    (4) Involves safeguards information, Privacy Act information, or 
information which could be considered proprietary;
    In addition, conferences will not normally be open to the public 
if:
    (5) The conference involves medical misadministrations or 
overexposures and the conference cannot be conducted without disclosing 
the exposed individual's name; or
    (6) The conference will be conducted by telephone or the conference 
will be conducted at a relatively small licensee's facility.
    Notwithstanding meeting any of these criteria, a conference may 
still be open if the conference involves issues related to an ongoing 
adjudicatory proceeding with one or more intervenors or where the 
evidentiary basis for the conference is a matter of public record, such 
as an adjudicatory decision by the Department of Labor. In addition, 
notwithstanding the above normal criteria for opening or closing 
conferences, with the approval of the Executive Director for 
Operations, conferences may either be open or closed to the public 
after balancing the benefit of the public's observation against the 
potential impact on the agency's decision-making process in a 
particular case.
    The NRC will notify the licensee that the conference will be open 
to public observation. Consistent with the agency's policy on open 
meetings, ``Staff Meetings Open to Public,'' published September 20, 
1994 (59 FR 48340), the NRC intends to announce open conferences 
normally at least 10 working days in advance of conferences through (1) 
notices posted in the Public Document Room, (2) a toll-free telephone 
recording at 800-952-9674, (3) a toll-free electronic bulletin board at 
800-952-9676, and on the World Wide Web at the NRC Office of 
Enforcement homepage (www.nrc.gov/OE). In addition, the NRC will also 
issue a press release and notify appropriate State liaison officers 
that a predecisional enforcement conference has been scheduled and that 
it is open to public observation.
    The public attending open conferences may observe but may not 
participate in the conference. It is noted that the purpose of 
conducting open conferences is not to maximize public attendance, but 
rather to provide the public with opportunities to be informed of NRC 
activities consistent with the NRC's ability to exercise its regulatory 
and safety responsibilities. Therefore, members of the public will be 
allowed access to the NRC regional offices to attend open enforcement 
conferences in accordance with the ``Standard Operating Procedures For 
Providing Security Support For NRC Hearings and Meetings,'' published 
November 1, 1991 (56 FR 56251). These procedures provide that visitors 
may be subject to personnel screening, that signs, banners, posters, 
etc., not larger than 18'' be permitted, and that disruptive persons 
may be removed. The open conferences will be terminated if disruption 
interferes with a successful conference. NRC's Predecisional 
Enforcement Conferences (whether open or closed) normally will be held 
at the NRC's regional offices or in NRC Headquarters Offices and not in 
the vicinity of the licensee's facility.
    For a case in which an NRC Office of Investigations (OI) report 
finds that discrimination as defined under 10 CFR 50.7 (or similar 
provisions in Parts 30, 40, 60, 70, or 72) has occurred, the OI report 
will be made public, subject to withholding certain information (i.e., 
after appropriate redaction), and any resulting predecisional 
enforcement conference will normally be open to public observation. In 
a conference where a particular individual is being considered 
potentially responsible for the discrimination, the conference will 
remain closed. In either case (i.e., whether the conference is open or 
closed), the employee or former employee who was the subject of the 
alleged discrimination (hereafter referred to as ``complainant'') will 
normally be provided an opportunity to participate in the predecisional 
enforcement conference. This participation will normally be in the form 
of a complainant statement and presentation in followup to the 
licensee's presentation, followed in turn by an opportunity for the 
licensee to rebut the complainant's presentation. In cases where the 
complainant is unable to attend in person, arrangements will be made 
for the complainant's participation by telephone or an opportunity 
given for the complainant to submit a written rebuttal to the

[[Page 13908]]

licensee's presentation. If the licensee chooses to forego an 
enforcement conference and, instead, responds to the NRC's findings in 
writing, the complainant will be provided the opportunity to submit a 
written rebuttal to the licensee's response. For cases involving 
potential discrimination by a contractor or vendor to the licensee, any 
associated predecisional enforcement conference with the contractor or 
vendor would be handled similarly. These arrangements for complainant 
participation in the predecisional enforcement conference are not to be 
conducted or viewed in any respect as an adjudicatory hearing.
    A predecisional enforcement conference may not need to be held in 
cases where there is a full adjudicatory record before the Department 
of Labor. If a conference is held in such cases, generally the 
conference will focus on the licensee's corrective action. As with 
discrimination cases based on OI investigations, the complainant may be 
allowed to participate.
    Members of the public attending open conferences will be reminded 
that (1) the apparent violations discussed at predecisional enforcement 
conferences are subject to further review and may be subject to change 
prior to any resulting enforcement action and (2) the statements of 
views or expressions of opinion made by NRC employees at predecisional 
enforcement conferences, or the lack thereof, are not intended to 
represent final determinations or beliefs.
    When needed to protect the public health and safety or common 
defense and security, escalated enforcement action, such as the 
issuance of an immediately effective order, will be taken before the 
conference. In these cases, a conference may be held after the 
escalated enforcement action is taken.
* * * * *
    Dated at Rockville, Maryland, this 17th day of March, 1997.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 97-7315 Filed 3-21-97; 8:45 am]
BILLING CODE 7590-01-P