ML20056E029
| ML20056E029 | |
| Person / Time | |
|---|---|
| Issue date: | 07/28/1993 |
| From: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| To: | |
| References | |
| FRN-58FR41108, RULE-PR-30, RULE-PR-40, RULE-PR-50, RULE-PR-70, RULE-PR-72 NUDOCS 9308190227 | |
| Download: ML20056E029 (16) | |
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NUCLEAR REGULATORY COMMISSION Whistleblower Protection; Request for Comment l
l AGENCY:
Nuclear Regulatory Commission.
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ACTION:
Request for public comment.
SUMMARY
The Nuclear Regulatory Commission (NRC) requests public comment on whether it has taken sufficient steps within its authority to create an atmosphere within the regulated community where individuals with safety concerns feel free to engage in protected activities without fear of retaliation..The NRC is t
soliciting comments from interested persons including persons who I
<t have made safety allegations, other employees and the regulated industry.
This action is intended to assist the NRC in l
1 evaluating current activities and making recommendations for improvements in the regulatory process.
DATE:
The comment period expires [ insert date thirty days after publication in the Federal Register).
Comments received after
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this date will be considered if it is practical to do so, but the l
Commission is able to assure consideration ~only for comments i
received on or before this date.
In view of the need to provide f
a report to the commission by mid October, requests to extend the comment period will not be considered.
9308190227 930728 PDR MISC I
'I 9308190227 PDR
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( ADDRESSES:
Submit written comments to:
The Chief, Rules Review and Directives Branch, Mail Stop: P-223, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
Hand deliver comments to:
7920 Norfolk Avenue, Bethesda, 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:
On July 6, 1993, the Executive Director for_ Operations established a Review Team for Reassessment of the NRC Program for Protecting Allegers Against Retaliation.
The Review Team is to determine whether the Commission has taken sufficient steps within its authority to create an atmosphere within the regulated community where individuals with safety concerns feel free to engage in protected activities without fear of retaliation.
The Review Team is soliciting comments from interested persons, i
including persons who have made safety allegations, other employees, and the regulated industry.
Comments from reactor and materials licensees and their employees are of interest.
i
. From a practical point of view the NRC, even with its many inspectors, can observe only a fraction of licensed activities, j
Although the NRC's program for ensuring adequate protection is not structured to be dependent upon allegations of safety deficiencies, the NRC will never have the knowledge possessed by the thousands of employees in the nuclear industry.
The NRC, therefore, expects employees in the nuclear industry to be free i
to raise potential safety issues.
E Recognizing that it is not the NRC, but licensees who hava the first responsibility for safety, it is not enough for employees to feel free to come directly to the NRC.
Employees must feel free to raise potential safety issues to their management.
Over the years the NRC, the regulated industry, and r
the public have benefitted from the issues raised by employees of licensees and their contractors.
The current regulatory process seeks to provide protection against retaliation for employees engaged in protected activities, e.g.,
raising of safety concerns to a licensee or the NRC.
Discrimination against an employee for engaging in protected activities is prohibited by the Commission's regulations (e.g.,
10 CFR 30 7, 40.7, 50.7, 60.9, 61.9, 70.7, and i
72.10).
Discrimination for purposes of this notice and the i
Commission's regulations includes discharge and other actions that relate to compensation, terms, conditions, and privileges of I
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A licensee is subject to enforcement action under the Atomic Energy Act of 1954, as amended, for violations of f
these prohibitions by the licensee or its contractors and L
subcontractors.
The Atomic Energy Act does not provide the NRC with the authority to provide a personal remedy, such as reinstatement or back pay to an employee who has been subject to discrimination.
An employee who believes that discrimination has occurred may seek a personal remedy by filing a complaint with the Department of Labor (DOL) in accordance with Section 211 of the Energy Reorganization Act of 1974, as amended.
However, the DOL process for providing personal remedies for those retaliated against, and the NRC process for taking enforcement action against the licensees who have retaliated, is time consuming.
P The NRC responds to technical aspects of allegations.
However, to a large degree, the NRC relies on the DOL for investigating allegations of discrimination.
The NRC Inspector General, in a report issued July 9, 1993, has found.
dissatisfaction with the current procedures and efforts.
The Inspector General, after interviewing various whistleblowers and l
NRC staff members, concluded that the NRC process for handling.
i allegations of retaliation does not provide an adequate level of I
protection for whistleblowers.
The Inspector General report is-
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I available for public inspection and copying at the Commission's r
I Public Document Room, Accession Number 9307260199.
i In order to assess the NRC's performance, the Commission has directed that a Review Team be established to determine if NRC has taken sufficient steps to establish working environments i
within licensees' organizations where the great majority of l
employees feel free to raise issues without fear of retaliation.
Because Section 211 of the Energy Reorganization Act was recently t
amended as part of the Energy Policy Act of 1992, Pub. L.
102-486, this review is to focus primarily on the existing statutory framework, i.e.,
the DOL provides the personal remedy to the employee, and NRC is responsible for regulating licensees i
r such that licensees will foster an atmosphere where individuals will be encouraged to come forward with safety information f
without fear of retaliation.
l In accordance with its charter, the Review Team is to consider:
(a) Whether the NRC has taken sufficient action through issuance of regulations, policy statements, and inspections to assure that NRC licensees encourage their employees and contractors to raise safety concerns without fear of reprisal; e
(b) Whether the current NRC process for handling allegations is appropriate from the perspective of allegers feeling free to bring safety concerns to the NRC; and
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I (c) Where discrimination may have occurred --
i (1) Whether there are NRC actions that can assist in a l
i speedier. resolution of issues within the DOL process; (2) Whether NRC should be more proactive in conducting
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investigations during the pendency of DOL proceedings; i
(3) Whether the NRC takes sufficient follow up action to determine if the licensee has taken action to remove the potential chilling effect arising from the discrimination; t
(4) Whether the NRC can and should use civil penalties and orders more vigorously to emphasize the need for licensees l
actively to encourage employees to raise safety concerns without fear of discrimination; and
.f (5) Whether the NRC can and should use orders and demands i
for information more vigorously, where individuals are found to have caused discrimination; and (d) Whether the NRC is sufficiently proactive in cases where l
employees raise concerns with the NRC and express fear that they i
may become subject to retaliation for raising safety concerns.
l Public comments from employees as well as licensees are requested on these issues.
In addition, to focus _ comment on i
i issues of interest to the Review Team,' the following areas are highlighted for specific comments.
Please key your comments to the numbering system used to present the following issues.
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, A.
Responsiveness and recentiveness of licensees to emolovee concerns so that employees will feel free to raise safety issues without fear of retaliation.
1.
Many licensees have adopted employee concern type programs.
These programs provide a recourse for employees who believe that raising safety concerns within the normal organizational processes may result in retaliation or that the normal processes may not be responsive to safety issues.
These programs provide a method for employees to raise concerns outside their supervisory chain.
These programs frequently provide for confidentiality or anonymity to encourage employees to raise issues without fear of retaliation.
a.
What are the characteristics of these programs?
Please provide a brief descriptions of such programs (including resources required; skills and qualifications of personnel involved; methodology for receiving, investigating, and resolving issues; actions taken to protect the identity of employees;-
number of concerns received per year; and degree of independence from line management).
b.
To what degree are independent third parties or ombudsmen used in this type of program?
c.
What organizational attributes _ encourage employees to-use the licensee's-employee concern type programs but at the same time do not discourage employees from bringing concerns to the NRC?
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How do licensees measure the effectiveness of these programs in encouraging employees to raise concerns and in dealing with the concerns raised effectively (e.g., auditors, j
mail surveys)?
What is the frequency of the measurements used?
e.
What lessons have been learned from the implementation 7
of this type of program?
What attributes make the program 1
effective?
Please provide examples of where employees used an f
employee concern type programs and actions were taken to improve
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safety as a result of the program.
What program characteristics
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contributed to the success of these cases?
What efforts are used
=t to remove the potential for negative peer pressure that may cause employees not to raise issues?
f.
What actions does management take to let employees know, in addition to the program description itself and training provided, that management in fact desires to receive safety t
concerns and appreciates it when valid concerns are provided?
Does management use awards, promotions, publication of-ideas, or f
i other concrete actions to show that management appreciates concerns being raised?.
g.
Do employees have confidence in employee concern type f
programs?
The response should provide the basis for the position taken.
From an employee perspective, are there characteristics of these programs which cause them not te be used?
Do employees perceive them as effective?
If not, why not?
What positive i
comments or negative concerns do employees have about such l
programs?
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b
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Would employees use this type of program?
If not, why i
not?
What program attributes would encourage employees to raise
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safety issues without fear of retaliation?
i.
Should the NRC adopt a policy statement on the use of this type of program to express the Commission's desire for major licensees (Reactor and Fuel Cycle licensees) to establish programs to allow employees to raise safety issues outside their normal management chain in order to encourage employees to come forward without' fear of retaliation?
If not, why not?
j.
Should a regulation be adopted instead of a policy statement?
If not, why not?
i k.
Should the NRC order the adoption of an employee concern type program including third party or an independent ombudsman when the normal organizational processes are not adequate to encourage employees to raise safety issues without fear of retaliation?
2.
An underlying principle of NRC regulation is that licensees have the primary and fundamental responsibility'for i
assuring.that their activities are carried out in a safe manner.-
This principle clearly applies in the area of raising, dealing with, and learning from safety issues.
The Review Team is,-
i therefore, interested in comments on those licensee and NRC actions and processes.which are most likely to result in licensees addressing safety issues as a part of their normal course of business, 1
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I a.
What are the organizational characteristics that
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encourage employees to raise safety issues and that effectively deal with these within the normal organizational processes?
What efforts are made to remove the potential for negative pear pressure that may cause employees not to raise issues?
b.
What measures could the industry or NRC take to encourage licensee organizations to establish and maintain these characteristics?
c.
How do licensees measure the effectiveness of the normal organization with respect to encouraging employees to raise concerns and effectively dealing with the concerns raised (e.g.,
auditors, mail surveys)?
What is the frequency of these i
measurements?
d.
What organizational attributes encourage employees to use the licensee's normal organizational processes but do not discourage employees from bringing concerns to the NRC?
i B.
Responsiveness and receptiveness of the NRC to allegations Allegations are an important source of information to the NRC.
Employees may contact NRC inspectors directly or may call NRC collect.
Under current NRC procedures, the NRC staff reviews each allegation for technical safety significance and makes determinations as to the appropriate method to resolve the safety 1
issue.
Allegations are often referred to licensees for l
resolution because the licensees have the primary responsibility
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. for the safe operation of their facilities.
In making referrals to licensees, precautions are taken so that the alleger is not identified.
The Staff recognizes that even if it does the follow L
up on the allegation,.!HU: action on a matter may risk identifying I
the source because of the relatively few people that may know of an issue and the fact the individual may have raised the issue previously with the licensee.
1.
What can the NRC do to be more responsive and receptive f
to allegations?
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2.
Comments are sought on the NRC policy to refer safety
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issues to licensees and actions the NRC can take to minimize compromising the identity of allegers in the referral process.
3.
What NRC actions can be taken to minimize the potential i
for inadvertently identifying allegers when the NRC conducts the follow up inspection or investigation?
4.
Would the establishment of a toll free 800 number for l
I workers to call during the day or after hours be more conducive to having concerns raised to the NRC?
5.
Are NRC inspections based on interviewing employees t
effective in measuring employee views on whether they feel free j
to raise safety issues without fear of retaliation? If not, why not?
Comments are sought as to more effective ways such as using a survey questionnaire that can be returned directly to NRC.
C.
Potential For Discrimination i
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! The NRC at times receives information that employees are concerned that they may be retaliated against if they raise safety issues but that discrimination has not yet occurred.
i 1.
What action should the NRC take when employees indicate a concern for potential retaliation about raising safety issues before the retaliation occurs?
2.
In such cases, should the NRC formally advise the licensee that they have employees who are concerned about raising safety issues and that the NRC will be monitoring employment actions associated with those employees? If NRC should provide such notice, what mechanisms should be used?
If NRC should not provide such notice, why not?
D.
NRC Investications Durina DOL Process In order to avoid the duplication of efforts, the NRC and DOL entered into a Memorandum of Understanding (47 FR 54585; December 3, 1982).
While the NRC investigations of allegations i
of discrimination are normally held in abeyance pending the DOL process, there are times, because of the significance of the issues to public health and safety, that investigations are conducted notwithstanding the ongoing DOL process.
The Review Team is reconsidering whether the NRC should be conducting investigations during the DOL process.
In that regard, individuals can file promptly with the NRC a concern that i
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e discrimination has occurred but then can wait six months before going to the DOL.
1.
Should the NRC reconsider the MOU with the DOL and t
conduct investigations during the DOL process?
In that regard, comments are sought on the impact of parallel investigations on remedial actions by licensees (including disciplinary actions),
settlements (including both substance and timeliness of settlements), and adjudications.
2.
If NRC should not conduct parallel investigations, should NRC conduct an investigation after the DOL process ends without a finding on the merits after the Area Office decision, after the Administrative Law Judge decision, or after the l
decision of the Secretary of Labor?
If not, how should the NRC get the evidentiary record to develop an appropriate regulatory response and obtain remedial action by licensees to avoid the potential for a chilling effect on others that may have been i
created because of the licensee's actions?
3.
Should the NRC await initiating an investigation until the 180 day statutory period for filing a complaint with the DOL i
has passed?
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E.
Earlier NRC Enforcement Action l
The NRC currently initiates enforcement action after j
findings by the DOL Administrative Law Judges.-They are normally-issued more than a year after the Area Office decision.
It is
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also recognized that the Area Office Directors are required to complete their investigations and reach decisions within. tight statutory time frames.
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Should NRC initiate enforcement action following a-l 1.
decision of an Area Office Director?
If not, why not?
t Will this approach tend to encourage licensees.to 2.
cooperate more with the DOL investigators, encourage more settlements to resolve issues without an adjudicatory record, or increase litigation because of the impact of a penalty from NRC?
F.
Chillina Effect Letters
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l In each case where the DOL initial investigation finds l
discrimination, the NRC issues a letter to request from the i
licensee (1) its basis for the employment action.againstlthe i
individual and (2) the actions taken or planned to ensure thatt j
the alleged discriminatory actions, whether actual or perceived,-
do not have a chilling effect on other employees who could' raise safety concerns..-These letters, known as chilling-effect i
a letters," are not substitutes for enforcement action.
They are issued to make NRC's interest known to'the licensee, to encourage
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the licensee to' initiate corrective action in advanceLof a
-finding by the Secretary of Labor of-a-violation,land to assure-that the licensee knows of the DOL complaint in those cases where ll
'the complaint is filed against a contractor of the licensee.
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. 3.
Should the NRC seek an amendment to Section 234 of the Atomic Energy Act to provide for higher civil penalties for violations involving discrimination?
If so, how much and why?
H.
Use of Deliberate Misconduct Rule On August 15, 1991 (56 FR 40664), the commission enacted a P
series of regulations entitled " Deliberate Misconduct" (e.g. 10 CFR 50.5), providing for taking enforcement action directly against licensee's employees who engage in deliberate misconduct, including discrimination.
1.
Under what circumstances should the Deliberate Misconduct rule be used for violations involving discrimination?
2.
What sanctions should be used against supervisors involved in discrimination?
Comments are sought on the period of time individuals might be removed from licensed activities for engaging in deliberate discriminatory conduct and whether civil
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1 penalties should be assessed against individuals who deliberately retaliate and the amounts of such penalties.
In addition to those specific issues, commenters are invited i
to provide any other views on NRC activities to prevent discrimination from occurring and, where it does occur, for-l taking action to remove any related potential chilling effect and l
whether NRC actions have established the desired deterrent effect-and achieved their remedial purposes.
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. Dated at Rockville, Maryland, this OJ'/h day of du/q V
1993.
For the Nuclear Regulatory Commission.
pyg knia ames Lieberman, irector, Office of Enforcement
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