64890 Federal Register / Vol. 66, No. 241 / Friday, December 14, 2001 / Notices

partnerships (e.g., with two- and fouryear higher education institutions,

business, research labs, and local, state,

and federal agencies). LSAMP projects

fund students, offer a range of student

support services, and undertake

systemic reform of undergraduate

education in STEM (particularly

curricular improvement and faculty

professional development). This mixedmethods study will gather data through

telephone interviews with project staff,

a survey questionnaire of program

graduates, and in person interviews

with faculty, staff, and students at three

selected case study sites. The process

evaluation component of this study will

identify strategies that accelerate or

inhibit the attainment of project goals,

strategies employed to promote linkages

among Alliance partners, and the

manner in which the LSAMP model has

evolved since its inception. The impact

evaluation component of this study will

examine program impact on institutions

of higher education in promoting

diversity in STEM, and participant

career outcomes.

2. Expected Respondents

The expected respondents are project

directors and/or managers of all 27

projects; LSAMP graduates who

received program funding and who

earned STEM baccalaureate degrees

between 1992 and 1997; ad, faculty,

staff, and student participants at the

three selected case study sites.

3. Burden on the Public

The total elements for this collection

are 308 burden hours for a maximum of

795 participants annually, assuming a

90–100% response rate. The average

annual reporting burden is under 1 hour

per respondent. The burden on the

public is negligible because the study is

limited to project participants that have

received funding from the LSAMP

Program.

Dated: December 10, 2001.

Suzanne H. Plimpton,

NSF Reports Clearance Officer.

[FR Doc. 01–30893 Filed 12–13–01; 8:45 am]

BILLING CODE 7555–01–M

NUCLEAR REGULATORY

COMMISSION

Enforcement Program and Alternative

Dispute Resolution Request for

Comments

AGENCY: Nuclear Regulatory

Commission.

ACTION: Request for comments.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is announcing its

intent to evaluate the use of Alternative

Dispute Resolution (ADR) in the NRC’s

enforcement program, which is

governed by the NUREG–1600, ‘‘General

Statement of Policy and Procedure for

NRC Enforcement Actions’’

(Enforcement Policy). The NRC is

undertaking this evaluation because

ADR techniques have proven to be

efficient and effective in resolving a

wide range of disputes governmentwide. The Commission is seeking public

comment in the form of answers to

questions presented in the

SUPPLEMENTARY INFORMATION section of

this notice.

DATES: The comment period expires

January 28, 2002.

ADDRESSES: Submit written responses to

the questions presented in the

Supplementary Information section of

this notice to Michael Lesar, Chief,

Rules and Directives Branch, Division of

Administrative Services, Office of

Administration, Mail Stop T–6 D59,

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. on Federal workdays.

Copies of comments received may be

examined at the NRC Public Document

Room, 11555 Rockville Pike, Rockville,

MD 20852. Comments may also be sent

electronically to Mr. Lesar, E-mail

mtl@nrc.gov.

FOR FURTHER INFORMATION CONTACT:

Terrence Reis, Office of Enforcement,

U.S. Nuclear Regulatory Commission,

Washington, DC 20555–0001 (301) 415–

3281, E-mail txr@nrc.gov, or Francis X.

Cameron, NRC ADR Specialist, Office of

the General Counsel, U.S. Nuclear

Regulatory Commission, Washington DC

20555–0001, (301) 415–1642, E-mail

fxc@nrc.gov.

SUPPLEMENTARY INFORMATION: ‘‘ADR’’ is

a term that refers to a number of

voluntary processes, such as mediation

and facilitated dialogues, that can be

used to assist parties in resolving

disputes and potential conflicts. The

Administrative Dispute Resolution Act

of 1996 (ADR Act) encourages the use of

ADR by Federal agencies, and defines

ADR as ‘‘any procedure that is used to

resolve issues in controversy, including

but not limited to, conciliation,

facilitation, mediation, fact finding,

minitrials, arbitration, and use of an

ombudsman, or any combination

thereof’’ (5 U.S.C. 571(3)). These

techniques involve the use of a neutral

third party, either from within the

agency or from outside the agency, and

are typically voluntary processes in

terms of the decision to participate, the

type of process used, and the content of

the final agreement. Federal agency

experience with ADR has demonstrated

that the use of these techniques can

result in more efficient resolution of

issues, more effective outcomes, and

improved relationships between the

agency and the other party.

The NRC has a general ADR policy

(57 FR 36678; August 14, 1992) that

supports and encourages the use of ADR

in NRC activities. In addition, the NRC

has used ADR effectively in a variety of

circumstances, including rulemaking

and policy development, and EEO

disputes. Section 2.203 of the

Commission’s regulations provides for

the use of ‘‘settlement and compromise’’

in proceedings dealing with

enforcement issues. In addition, § 2.337

of the Commission’s proposed revisions

to the NRC hearing process provides for

ADR in NRC proceedings (see, 66 FR

19610, 19645; April 16, 2001). In at least

one instance, an NRC enforcement case

has been resolved through the use of a

‘‘settlement judge’’ from the Atomic

Safety and Licensing Board Panel

pursuant to 10 CFR 2.203 of the

Commission’s regulations, but there has

been no systematic evaluation of the

need for ADR in the enforcement

process. The NRC’s participation in a

1998 interagency initiative to encourage

the use of ADR by Federal agencies, and

the NRC’s receipt of a request to use

ADR in a recent enforcement case, have

prompted the agency to consider

whether a new, specific ADR policy

would be beneficial in the enforcement

area.

Use of ADR by the NRC and other

Federal Agencies. In order to encourage

Federal agencies to take advantage of

the benefits of ADR, Congress enacted

the ADR Act. The Act requires each

agency to do the following:

1. Adopt a policy that addresses the

use of ADR;

2. Designate a senior official to be the

dispute resolution specialist for the

agency;

3. Provide ADR training on a regular

basis; and

4. Review each standard agency

agreement for contracts, grants, and

other assistance with an eye towards

encouraging the use of ADR.

As noted above, ‘‘ADR’’ is a term that

describes a set of processes which assist

parties in resolving their disputes

quickly and efficiently. Mediation, early

neutral evaluation, facilitated dialogues,

and arbitration are examples of these

ADR processes. Central to each ADR

process is the use of an objective third

party or neutral, for example, a

Federal Register / Vol. 66, No. 241 / Friday, December 14, 2001 / Notices 64891

1 Investigations, however, are confidential, and

enforcement conferences involving wrongdoing are

closed.

facilitator or mediator, to assist the

parties in resolving their dispute.

Experience has shown that ADR can

resolve disputes in a manner that is

quicker, cheaper, and less adversarial

than the traditional litigation process. In

ADR, parties meet with each other

directly, under the guidance of a neutral

professional who is trained and

experienced in handling disputes. The

parties talk about the problems that led

to the dispute and discuss possible

resolution strategies. With the assistance

of the neutral professional, the parties

are able to retain control over their own

disputes and work collaboratively to

find creative, effective solutions that are

agreeable to all sides. ADR commonly

involves mediation and facilitation, in

which a third party neutral assists the

parties in coming to agreement. The

neutral in these cases does not impose

any decision on the parties.

Many Federal agencies have

established or are considering the use of

ADR in civil enforcement actions. For

example, the Environmental Protection

Agency has used ADR to assist in the

resolution of numerous disputes related

to the enforcement of Superfund and

other environmental statutes that EPA

administers. Mediated negotiations have

ranged from two-party Clean Water Act

cases to Superfund disputes involving

upwards of 1200 parties. The U.S. Navy

has entered into an innovative

partnering agreement with the State of

Florida to address compliance with

environmental regulations at naval

installations. The Federal Energy

Regulatory Commission has established

an alternative licensing process that

provides for a facilitated dialogue to

assist parties in negotiating licensing

agreements. The Federal Mine Safety

and Health Review Commission has

proposed the use of settlement judges

serving as mediators to assist parties in

reaching settlement prior to an

administrative hearing on contested

compliance cases arising under the

Federal Mine Safety and Health Act of

1997. The NRC staff has consulted

several of these agencies that are

experienced in the application of ADR

to enforcement cases. These discussions

have highlighted a number of important

points for the NRC to consider in the

course of its evaluation:

The use of ADR should be understood

broadly. ADR encompasses many

different techniques that might be

employed at various points in the

enforcement process. For example,

although mediation is the most

commonly used ADR technique in the

enforcement arena, techniques such as

neutral fact-finding or facilitated

negotiation can also assist in resolving

disputes and avoiding potential

conflicts. In addition, ADR can be used

at any point in the enforcement process

where a discussion or negotiation

between the parties takes place.

ADR should not be viewed as an

alternative to settlement. Agencies,

including the NRC, have traditionally

attempted to settle disputes in the

enforcement area. ADR is simply a set

of additional tools that an agency can

use to more effectively address potential

settlement issues, whether in the

enforcement area or elsewhere. A key

distinguishing feature of ADR-assisted

settlement discussions is the presence of

a neutral third party (i.e., a mediator, a

facilitator) with expertise in conflict

resolution techniques. ‘‘Effectiveness’’

in this context may include a faster and

more systematic settlement process, as

well as better and more enduring

outcomes, reduced transaction costs,

and improved relationships between the

parties. However, the potential

effectiveness of ADR must be evaluated

within the context of an agency’s

mission, process, and procedures.

The use of ADR is not appropriate in

all circumstances. There will always be

cases that should go to litigation, rather

than be settled, for example, because of

an important policy objective or in cases

of first impression.

Although there are many potential

beneficial uses of ADR, the ADR Act

also identifies several situations where

an agency should consider not using

ADR:

1. A definitive or authoritative

resolution of the matter is required for

precedential value;

2. The matter involves significant

questions of government policy that

require additional procedures before a

final resolution is made;

3. Maintaining established policies is

of special importance so that variations

among individual decisions are not

increased;

4. The matter significantly affects

persons or organizations that are not

parties to the proceeding;

5. A full public record of the

proceeding is important and a dispute

resolution proceeding cannot provide

such a record; and

6. The agency must maintain

continuing jurisdiction over the matter

with authority to alter the disposition of

the matter in light of changed

circumstances.

The NRC intends to consider these

factors, along with the public comments

on this notice, in evaluating whether,

and to what extent, a specific ADR

policy in the enforcement area is

needed.

The NRC Enforcement Process. The

NRC’s Enforcement Process is generally

based on open, fact-finding and

evaluative processes that rely on the

principles of transparency to the public

and early and full discourse to the party

responsible for the apparent violation.1

In brief, the agency’s enforcement

process, as governed by the Enforcement

Policy (NUREG–1600, General

Statement of Policy and Procedure for

NRC Enforcement Actions, February 16,

2001), can be summarized as follows:

Agency enforcement actions arise

from the results of inspections and

investigations. Following identification

of potentially escalated enforcement

actions the issue is brought to a multidisciplinary NRC staff panel to achieve

consensus that a violation of NRC

requirements has occurred and that the

violation warrants escalated

enforcement action. Enforcement

actions also include the issuance of

orders to modify, suspend or revoke a

license which may be based on a

violation or noncompliance with a

requirement or other public health and

safety issue. If consensus is reached, the

licensee or individual is then formally

notified that the NRC considers an issue

an apparent violation and is told the

basis for the apparent violation. The

licensee or individual is then offered an

opportunity to have a conference with

the NRC or provide its position in

writing. The licensee or individual

subject to the action is always asked to

state whether it agrees or disagrees with

apparent violations as stated. After the

licensee or individual presents its case,

the multi-disciplinary panel meets again

to determine what enforcement action,

if any, is appropriate. If it is determined

that a civil penalty is warranted in

accordance with the enforcement

policy, that decision and the basis for it

are formally transmitted to the licensee

or individual in the form of a Notice of

Violation and Proposed Civil Penalty.

At this stage the licensee or individual

has the opportunity to restate its case in

writing. If after reviewing the response,

the NRC continues to maintain the

action is appropriate, the civil penalty is

imposed by order. After imposition, the

licensee or individual then has the

opportunity to request a hearing and

proceed with adjudication. After a

hearing has been requested, settlement

is subject to the provisions in 10 CFR

2.203.

If only a Notice of Violation is

proposed, such is normally the case for

issues dispositioned under the Reactor

64892 Federal Register / Vol. 66, No. 241 / Friday, December 14, 2001 / Notices

Oversight Process, the licensee is

required to respond to the violation and

may contest it. However, in such cases

there are no hearing rights as there are

in cases where an Order is issued or a

civil penalty is imposed.

Data on enforcement cases suggest

that the agency’s current enforcement

process offers ample opportunity for

settlement and avoids costly litigation

without specifically employing ADR

techniques. Since 1988, out of

approximately 1300 civil penalties

proposed, there have been 222 Orders

imposing civil monetary penalties, and

29 related requests for hearings (out of

a total of 79 enforcement related hearing

requests). The majority of those requests

were settled prior to hearing. However,

these statistics do not provide insights

as to whether there might be additional

opportunities to use ADR at various

points in the enforcement process or

whether existing settlement discussions

might be improved by the use of ADR.

Specific Issues. The NRC has

identified a number of issues that it

believes must be evaluated in order to

determine whether an enforcement

specific ADR policy is needed. Two of

the more notable issues are:

At what point in the enforcement

process should ADR be used? If the

agency is to pursue implementing ADR

in its enforcement processes, it must

decide what types of disputes would be

appropriate for resolution through ADR.

Enforcement is intended to act as a

deterrence and to ensure appropriate

and lasting corrective action to prevent

the recurrence of a non-compliance; in

this sense, it is one means by which the

agency ensures compliance with its

regulations and license requirements,

which, in turn, supports the ‘‘adequate

protection’’ standard of the Atomic

Energy Act. Enforcement sanctions are a

function of the significance of

violations. Viewing ADR from a narrow

perspective, one could argue that, in

terms of the enforcement program, only

disputes pertinent to the existence and

significance of a violation need be

considered. The NRC’s rules of practice

for enforcement, as set forth in Subpart

B of 10 CFR Part 2, provide the right to

request a hearing in connection with

orders imposing civil penalties, orders

modifying, suspending, or revoking a

license, or orders restricting an

individual’s right to engage in a licensed

activity. There are no hearing rights for

notices of violation issued without a

corresponding civil penalty. Given the

limited scope of issues in dispute in the

enforcement arena—existence and

significance of violations, and in the

case of civil penalties, the appropriate

amount—should the use of ADR

techniques be reserved only for those

issues that are eligible to be

adjudicated?

What are the implications of ADR for

the confidentiality of settlement

discussions in the enforcement area?

The ADR Act (5 U.S.C. 571–584)

provides for confidentiality of ‘‘dispute

resolution communications’’ in ‘‘dispute

resolution proceedings’’ involving a

Federal agency ‘‘administrative

program.’’ A Federal agency

‘‘administrative program’’ includes any

Federal function which involves the

protection of the public interest and the

determination of the rights, privileges,

and obligations of private persons

through rulemaking, adjudication,

licensing or investigation. NRC

enforcement processes and proceedings

would fall under this definition. A

‘‘dispute resolution proceeding’’ is any

process in which an alternative means

of dispute resolution is used to resolve

an issue in controversy in which a

neutral is appointed and specified

parties participate. The ADR Act

provides for a broad reading of the term

‘‘dispute resolution proceeding’’ and

incorporates all ADR forms and

techniques, including convening,

facilitation, mediation, and fact-finding.

The neutral may be a private person or

a Federal government employee who is

acceptable to the parties. The ADR Act

supports the use of neutrals to assist

parties during all stages of the

resolution of a disagreement, from the

convening of the participants and

design of an effective process to the

conduct of settlement discussions.

‘‘Confidential Information,’’ in the

context of a dispute resolution

proceeding, means information that a

neutral or a party cannot, by law or

agreement, voluntarily disclose to

anyone, or if disclosed, cannot be

admitted into evidence in any future

legal proceeding. Note that a key

distinction between ‘‘dispute resolution

proceedings’’ under the ADR Act and

traditional settlement discussions

conducted by the NRC and other

agencies is the presence of a neutral

who functions specifically to aid the

parties in resolving the controversy.

Settlement discussions between NRC

staff and licensees or other parties have

traditionally been closed and the

information kept confidential. Like the

practice under the ADR Act, the

settlement agreement itself must be

disclosed. Unlike the ADR Act, oral and

written communications by the parties

during joint sessions may be kept

confidential. No discovery has been

allowed on the issues in settlement

discussions in NRC enforcement cases.

Confidentiality can be a critical

component of a successful ADR process.

Guarantees of confidentiality, whether

in joint session of all the parties with

the neutral, or in a caucus involving the

neutral and one party, allow parties to

freely engage in candid, informal

discussions of their interests in order to

reach the best possible settlement of

their claims. A promise of

confidentiality allows parties to speak

openly without fear that statements

made during an ADR process will be

used against them later. Confidentiality

can reduce ‘‘posturing’’ and destructive

dialogue among parties during the

settlement process. Neutrals try to

promote a candid and informal

exchange regarding events of concern,

as well as about the parties’ perceptions

of and attitudes toward these events,

and encourage parties to think

constructively and creatively about

ways in which their differences might

be resolved. This frank exchange may be

achieved only if the participants know

that what is said in the ADR process

will not be used to their detriment in

some later proceeding or in some other

manner. These considerations would

seem to apply regardless of whether a

neutral was involved in the settlement

discussions.

However, some ADR practitioners

believe that mediation and other forms

of ADR will work without

confidentiality and that there is no need

to preserve confidentiality in an ADR

process. As noted above, the ADR Act

does not provide confidentiality to

statements or written comments by the

parties made during joint session.

Therefore, it may be possible to limit

confidentiality to the caucuses

involving the neutral and one of the

parties, and still open the information

provided in the joint sessions to public

scrutiny, if not public observation. In

addition, public policies that place an

emphasis on access rather than

confidentiality may lead to disclosure of

information in joint ADR sessions. In

fact, to the extent that settlement

discussions on enforcement issues are

public, there may be a value in having

these sessions assisted by a neutral.

The policy choice may not be between

ADR-assisted settlement discussions

and traditional settlement discussions

without the assistance of a neutral.

Rather, the choice seems to be whether

or not to engage in any confidential

settlement discussions on enforcement

issues, particularly certain types of

enforcement issues, such as when

wrongdoing is involved.

Questions for Public Comment. In

order for the NRC to evaluate whether,

and to what extent, ADR should be used

Federal Register / Vol. 66, No. 241 / Friday, December 14, 2001 / Notices 64893

in the enforcement arena, the NRC has

identified a number of issues for public

comment. The NRC is seeking public

comment on the following specific

questions and also invites general

comments on the questions, and also

invites general comments on the use of

ADR in NRC enforcement cases.

It should be noted that the NRC’s

Discrimination Task Group already

addressed and initially rejected the use

of ADR in employment discrimination

cases in its draft report which has been

released for public comment (66 FR

32966 dated June 19, 2001 and http://

www.nrc.gov—;Electronic Reading

Room, ADAMS Accession No.

ML011200244). The Commission,

however, desires to more thoroughly

examine the use of ADR in enforcement

proceedings, including discrimination

cases. Accordingly, the Discrimination

Task Group will await evaluation of

comments received as a result of this

Federal Register Notice before finalizing

its recommendation on the use of ADR.

The specific questions are as follows.

1. Is there a need to provide

additional avenues, beyond the

encouragement of settlement in 10 CFR

2.203, for the use of ADR in NRC

enforcement activities?

2. What are the potential benefits of

using ADR in the NRC enforcement

process?

3. What are the potential

disadvantages of using ADR in the NRC

enforcement process?

4. What should be the scope of

disputes in which ADR techniques

could be utilized?

5. At what points in the existing

enforcement process might ADR be

used?

6. What types of ADR techniques

might be used most effectively in the

NRC enforcement process?

7. Does the nature of the existing

enforcement process for either reactor or

materials licensees limit the

effectiveness of ADR?

8. Would any need for confidentiality

in the ADR process be perceived

negatively by the public?

9. For policy reasons, are there any

enforcement areas where ADR should

not be used, e.g., wrongdoing,

employment discrimination, or

precedent-setting areas?

10. What factors should be considered

in instituting an ADR process for the

enforcement area?

11. What should serve as the source

of neutrals for use in the ADR process

for enforcement?

Dated at Rockville, Maryland, this 10th day

of December 2001.

For the Nuclear Regulatory Commission.

Frank J. Congel,

Director, Office of Enforcement.

[FR Doc. 01–30926 Filed 12–13–01; 8:45 am]

BILLING CODE 7590–01–P

NUCLEAR REGULATORY

COMMISSION

Draft Regulatory Guide; Issuance,

Availability

The Nuclear Regulatory Commission

has issued for public comment a draft of

a new guide in its Regulatory Guide

Series. This series has been developed

to describe and make available to the

public such information as methods

acceptable to the NRC staff for

implementing specific parts of the

NRC’s regulations, techniques used by

the staff in evaluating specific problems

or postulated accidents, and data

needed by the staff in its review of

applications for permits and licenses.

The draft guide, temporarily

identified by its task number, DG–1111

(which should be mentioned in all

correspondence concerning this draft

guide), is ‘‘Atmospheric Relative

Concentrations for Control Room

Radiological Habitability Assessments at

Nuclear Power Plants.’’ This draft guide

is being developed to provide guidance

on determining atmospheric relative

concentration (X/Q) values in support of

design basis control room radiological

habitability assessments at nuclear

power plants. This guide describes

methods acceptable to the NRC staff for

determining X/Q values that will be

used in control room radiological

habitability assessments performed in

support of applications for licenses and

license amendment requests.

This draft guide has not received

complete staff approval and does not

represent an official NRC staff position.

Comments may be accompanied by

relevant information or supporting data.

Written comments may be submitted to

the Rules and Directives Branch, Office

of Administration, U.S. Nuclear

Regulatory Commission, Washington,

DC 20555. Copies of comments received

may be examined at the NRC Public

Document Room, 11555 Rockville Pike,

Rockville, MD. Comments will be most

helpful if received by March 15, 2002.

You may also provide comments via

the NRC’s interactive rulemaking web

site through the NRC home page (http:/

/www.nrc.gov). This site provides the

ability to upload comments as files (any

format) if your web browser supports

that function. For information about the

interactive rulemaking web site, contact

Ms. Carol Gallagher, (301) 415–5905; email CAG@NRC.GOV. For information

about the draft guide and the related

documents, contact Mr. S.F. LaVie at

(301) 415–1081; e-mail SFL@NRC.GOV.

Although a time limit is given for

comments on this draft guide,

comments and suggestions in

connection with items for inclusion in

guides currently being developed or

improvements in all published guides

are encouraged at any time.

Regulatory guides are available for

inspection at the NRC’s Public

Document Room, 11555 Rockville Pike,

Rockville, MD; the PDR’s mailing

address is USNRC PDR, Washington, DC

20555; telephone (301) 415–4737 or

(800) 397–4205; fax (301) 415–3548;

email PDR@NRC>GOV. Requests for

single copies of draft or final guides

(which may be reproduced) or for

placement on an automatic distribution

list for single copies of future draft

guides in specific divisions should be

made in writing to the U.S. Nuclear

Regulatory Commission, Washington,

DC 20555, Attention: Reproduction and

Distribution Services Section; or by email to <DISTRIBUTION@NRC.GOV>;

or by fax to (301) 415–2289. Telephone

requests cannot be accommodated.

Regulatory guides are not copyrighted,

and Commission approval is not

required to reproduce them. (5 U.S.C.

552(a))

Dated at Rockville, Maryland, this 29th day

of November 2001.

For the Nuclear Regulatory Commission.

Gina F. Thompson,

Senior Budget Analyst, Program Management,

Policy Development and Analysis Staff, Office

of Nuclear Regulatory Research.

[FR Doc. 01–30928 Filed 12–13–01; 8:45 am]

BILLING CODE 7590–01–P

PENSION BENEFIT GUARANTY

CORPORATION

Required Interest Rate Assumption for

Determining Variable-Rate Premium;

Interest Assumptions for

Multiemployer Plan Valuations

Following Mass Withdrawal

AGENCY: Pension Benefit Guaranty

Corporation.

ACTION: Notice of interest rates and

assumptions.

SUMMARY: This notice informs the public

of the interest rates and assumptions to

be used under certain Pension Benefit

Guaranty Corporation regulations. These

rates and assumptions are published

elsewhere (or can be derived from rates

published elsewhere), but are collected

and published in this notice for the

convenience of the public. Interest rates