ML20126C091
| ML20126C091 | |
| Person / Time | |
|---|---|
| Issue date: | 02/12/1979 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Tucker E NRC OFFICE OF EQUAL EMPLOYMENT OPPORTUNITY |
| Shared Package | |
| ML111190297 | List: |
| References | |
| SECY-80-039, SECY-80-39, NUDOCS 8003260490 | |
| Download: ML20126C091 (23) | |
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/ 4 UNITED STATES p4 t NUCLEAR REGULATORY COMMis3lON l s.. 9.j)), h WASHINGTCN, D. C. 20555
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. Up,[: H,3121373 MEMORANDUM FOR: Edward E. Tucker, Director Office of Equal Empicyment Opportunity
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FROM.: Howard X. Shapar Executive Legal Director
SUBJECT:
LEGAL ANALYSIS OF TITLE IV 0F THE ENERGY
. REORGANIZATION ACT ,
1 Title IV of the Energy Reorganization Act purports to create a right of protection against sex discrimination, but fails to identify (1) the party to be protected; (2) the party prohibited from discriminating; (3) the activities in which discrimination is prohibited; or (4) the specific program required of NRC in administering the provision.
The statute provides:
Sec. 401. No person shall on the ground of sex be excluded from participation in, be denied a license under, be denied the benefits i of, or be subjected to discrimination under any program or activity carried on or receiving Federal assistance under any title of this Act. This provision will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination under title VI of the Civil Rights Act of 1964. However, this remedy is not exclusive and will not prejudice or cut off any other legal remedies available to a discriminatee.
The legislative history is brief and murky. The explanation in the House f and Senate Reports and the floor, debate is that--
Section 401 [ title IV] bars sex discrimination in connection with license, activity, or Federal assistance under this act.gny Very few statutes of a similar nature go beyond recipients of Federal assistance to include "any program or activity carried on" under the act.
M S. Rep. No.93-980, 93d Cong., 1st Sess. 80 (1974); H.R. Rep. No. 707, 93d Cong., 1st Sess. 37(1973); comments of Sen. Ribicoff,,_,Cong. Rec. i S14,877 (daily ed. Aug. 13,1974). -
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Those that domh ave not been the subject of judicial interpretation, nor have they been fully interpreted or implemented by the agencies responsible j for their administration. ,
Accordingly, interpretation of title IV rests within the discretion of 1
, the NRC. The Ccmmission will have to decide upon an interpretation that makes the most sense from po.licy and administrative aspects. It appears, however, that certain aspects of title IV have been resolved by ?!RC regu-lations and certain minimum requirements may be inferred from the statutei Guidance in tiRC Reaulations l.
Although no explanatory record is available and no public comments were received on the matter,10 CFR 2.111, 4.1, and 19.32 provide certain minimum standards for the implementation of title IV. It should be i noted, however, that the Commission may choose to amend these regulationsi to conform with policy determinations concerning its role in enforcing :
the prohibition against sex discrimination. Such amendments should, of '
course, be consistent with title IV and should preserve pre-existing rights under the earlier regulations. - - --
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With regard to recipients of NRC financial assistance, the questions of '
who is protected, who is prohibited from discriminating, what activities .'
are affected, and f1RC administration are resolved in 10 CFR Part 4.
Part 4 implements title VI of the Civil Rights Act of 1964, which pro-hibits, discrimination by recipients of Federal financial aid on the basis ;,
of race, color, or national origin, and that part of title IV of the Energy Reorganization Act which prohibits pscrimination by recipients of Federal financial aid on the basis of sex.
10 CFR Part 2 Title IV, however, goes beyond discrimination on the part of recipients of Federal financial assistance to include "any program or activity carried on" under the act and to prohibit sex discrimination in the U See e.g. , 15 U.S.C. 775 (1976) (Federal Energy Administration);
40 U.S.C. 476 (1976) (General Services Administration). The Energy Research and Development Administration was also created by the Energy Reorganization Act and was subject to title IV. ficw part of the Department of Energy, ERDA never developed a program to implement title IV.
E Because the legal interpretation of the requirements of title IV as they apply to recipients of Federal aid is outlined in 10 CFR Part 4, this discussion will be limited to those aspects of Title IV not j covered by 10 CFR Part 4.
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denial of licenses under the act. Part 2 of Chapter 10 of the Code of Federal Regulations, " Rules of Practice," contains the following provision:
$2.111 Prohibition of sex discriminatien .
No person shall on the ground of sex be excluded frem participation i in, be denied a license uncer, be denied the benefits of, or be l subjected to discrimination under any program or activity carried on or receiving Federal assistance under the [Atemic Energy Act i of 1954] or the Energy Reorganization Act of 1974.
With regard to the first question, who is to be protected, " person" is defined in part 2 as-- ,
. . . (1) any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, government agency other than the Commission or the (Energy Research and Development]
Administration, except that the Administration shall be considered a person with respect to those facilities of the Administration specified in section 202 of the Eneroy Reorganization Act [concernina ERDA operations licensable by NRC], any State or any political subdivision of, or any political entity within a State, any foreign governnent, or nation or any- political subdivision of any such government or nation, or other entity; and (2) any, legal successor, representative, agency, or agency of the foregoing.2/
Obviously this definition was written with something other than title IV in mind, for it provides no useful guidance as to what category of persons is to be protected from sex discrimination.
Nonetheless, the placement of the sex prohibition in the part dealing with NRC rules of practice, plus the provision that no person shall on the ground of sex "be denied a license. . ." or "be denied the benefits" indicates that at a minimum applicants for NRC licenses and NRC licensees are among the persons to be protected from sex discrimination.
This also provides a partial answer to the second question, who is pro-hibited from discrimination. If applicants for NRC licenses and NRC licensees are protected under part 2, then NRC must be prohibited frca discriminating on the basis of sex. Thus, the NRC, at a minimum, is among those prohibited frem discriminating on the basis of sex.
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M 10 CFR 2.4(o) (1978). ,
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Edward E. Tucker - Section 2.111 also provides a partial answer to the third question, what are the activities in which sex discrimination is pronibited. Although ,
title IV prohibits sex discrimination "under any title of this act," the fact that the Energy Reorganization Act contains little other than admin-istrative and organi:ational provisions mignt argue in favor of tcplying <
the prohibition to activities receiving financial aid, carried on, or licensed by the NRC, the agency established under the Energy Reorganiza-tion Act. Section 2.111 adopts a broader view, extenoing the prohibition to activities under the Atomic Energy Act as well as the Energy Reorgani-zation Act. .
Section 2.111 provides little guidance regarding NRC implementation of title IV. It does, however, imply that among NRC's responsibilities under title IV is the duty to refrain from discriminating itself an the basis of sex. l j
10 CFR Part 19 Further guidance regarding title IV may be found in 10 CFR PartSec- 19, l
" Notices, Instructions and Reports to Workers; Inspections."
tion 19.32 states: i No person shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity licensed by the Nuclear Regulatory l Commission. This provision will be enforced through agency pro-visions and rules similar to those already established, with respect l to racial and other discrimination, under title VI of the Civil Rights Act of 1964. This remedy is not exclusive, however, and J
will not cut off any other legal remedies available to a discriminatee.
Although part 19; neither defines " person" nor identifies who is to be protected from sex discrimination, a partial answer may be inferred.
Part 19 generally protects workers for licensees subject to parts 30 through 35, 40, or 70, and persons licensed to operate a production or utilization facility pursuant to part 50. Section 19.3(c) defines
" worker" as--
an individual engaged in activities licensed by the Commission and controlled by a licensee, but does not include the licensee.
Thus, it may be reasoned that such per ons are to be protected from sex discrimination.
This in turn provides guidance as to those persons prohibited from discrimi-nating against workers on the basis of sex. Section 19.1 indicates that l
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part 19 contains requirements for licensees for the protection of their workers. Further,19.32 prohibits sex discrimination "under any program or activity licensed by the Nuclear Regulatory Commission," thus forbidding such discrimination by licensees. Accordingly, we can deduce that part 19 includes licensees among those who are prohibited from discriminating on the basis of sex.
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Part 19 also provides guidance as to what activities ccme under the prohibition against sex discrimination. It applies to "any This program or extends activity licensed by the Nuclear Regulatory Commission."
beyond the Energy Reorganization Act, and clearly includes the Atomic Energy Act.
Section 19.32 is less than helpful, however, in answering the final ,
question, what is the specific program required of NRC in administering:
title IV. Section 19.32 eenoes the statute, providing:
This provision will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination, under title ~VI of the Civil Rights Act of 1964. This remedy is not exclusive, however,
'and will not prejudice or cut off any other legal remedies available to a discriminatee.
As is shown in the companion note on title IV, those rules already estab-lished in 10 CFR Part 4 are gener611y inappropriate for administration of title IV in areas other than discrimination by recipients of NRC financial assistance. The enforcement proced.ures in 10 CFR Part 2, however, parallel those in part 4 and are far more appropriate in cases involving discrimina-tion by licensees. Accordingly,ies revisions in the regulations are planned to enforce title IV as it appl to licensees through part 2. The question of exactly what NRC must do to implement title IV in this area remains unresolved.
Minimum reauirements
- 1. Who is orotected from sex discrimination?
Nowhere in the Energy Reorganization Act is the term " person" defined.
Although certain minimum reouirements may be inferred, the statute fails to indicate - specifically wno is to be protected, and no other legal L tools of statutory interpretation are available. Thus, identification of the protected class is a matter for Commission discretion.
NRC regulations, however, already specify certain categories of persons appli-as coming within the protection of title IV. These persons are:
cants for NRC licensees and NRC licensees pursuant :o 10 CFR 2.111; and D
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Edward E. Tucker workers, i.e.,
individuals employed in activities licensed by the Con-missicn pursuant to 10 CFR 19.32.by a licensee, but not including licensees, and c:ntrolled It should be noted that these categories are cacable of further refine-ment or expansion. For example, the workers protected under Sec-tion 19.32 are li :i ted to t_ nose workers whose employers are licensed i under parts 30 througn 35, 40, or 70, and persons licensed to cperate a i production or utilizaticn facility pursuant to part 50. Construction l workers are not specifically covered under Section 19.32.
,i At a bare min.ic.um, title IV protects NRC licensees or applicants from , l, discrimination on the basis of sex. Certainly licensees or applicants -
are in a position to be excluded from participation in, be denied a license under, be denied the benefits of, or be subjected to discrimi- i !
nation under any program or activity carried on under the Act. It could' '
be argued that licensees or applicants are the only category of persons to be protected from sex discrimination under title IV. '
Nonetheless, a ccmpelling argument can be made for the inclusion of employees of licensees among the protected class. The statute goes beyond denial of licenses to include participation in and the beneff ts of programs or activities carried on under the Act. Workers surely partic-ipate in and benefit frem programs or activities carried on pursuant to licenses
.or under the Act, and may need the protection more than licensees,'
applicants. S e I Further, if an analogy to title VI of the Civil Rights Act is to be made,- '
employees of licensees would be protected. Title VI (although it generall does not protect employees of recipients of Federal financial assistance)Iy prohibits discrinination bv institutions receivinc Federal . aid acainst
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, programs. who might participate in the institutions' Fecerally-supported persons
- It may be argued that title IV of the Energy Reorganization Act similarly prchibits sex discrimination by licensees receiving NRC approval against nuclear workers who participate in the licensees' Federally-regulated activities.
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- v. Califano, 455 F. Suop.1212 (E.D. Mo.1976), cons:rutng a sex cis-crimination prohibition similar to Title IV, but applying only to
. ' recipients of Federal assistance, -to protect only participants 4
in the program, not employees of the institution receiving aid.
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Since Title IV coes bevond activities receiving financial aid, nuclear workers ~would logically be incluced in the enlarged j protected class.
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- 2. Who is orchibited from discriminatina?
The the basis statute of also sex.fails to specify who is forbidden frcm discriminating on The operative language of the pronibition is phrased in passive voice. so that the statute neither identifies who is pro-hibited from subjecting persons to discria' '*icn nor who carries on activities or programs uncer the Act. One
_ 'k: No person shall on the ground of sex be. excluded by whcm from par..,..,'ation in, be denied a license by whca, be denied cenefits oy wncm, or be subjected to discrimi-nation by whom under any crogram or activity carried on by whcm under any title of tne Act. Again, there is no straightforward legal answer.
The regulations, however, provide a partial answer. Section 2.111 impites i
that NRC (the only entity capable of denying a license) is subject to the prohibition against sex discrimination. Section 19.32 extends the pro hibition to licensees subject to parts 30 through 35, 40, or 70, and , <
persons licensed to cperate a production or utilization facility pursuant to part 50.
These categories are also capable of refinement or expansion. i I
At a minimum, title IV prohibits the Commission frca discriminating on grounds of sex.
Obviously NRC is the only entity capable of denying a license in this context. Moreover, NRC carries on programs and activi-ties under the legislation. It is possible to argue that NRC is the only entity forbidden from sex discrimination under title IV.
On the other hand, the broad and. absolute language of the prohibition would indicate that title IV further prohibits licensees from discrimi- ,
nating against their employees. Title IV can be read to mean that no 1 person shall on the ground of sex be excluded by his or her employer from #
participation in, be denied beneff'ts by his or her emoloyer or be y' subjected to discrimination by his or her emoloyer under any p,rogram or activity carried on by .'!RC or by licensees under the Act. The words "no person" appear to go beycnd licensees or applicants to include indivi- ;
duals involved in activities regulated by NRC.
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- 3. What activities are affected by the orohibition acainst sex discrimination?
, It is not clear what is meant in title IV by "any program or activity t carried on or receiving Federal assistance under any title of the Ac' " ,
Although this could be read literally to apply the ban against sex ;
discrimination only to activities authorized under the Enercy Reorcaniza-tion Act, such a " reading would make title IV virtually meaningless. ';
Almost Reorganization no programs Act. or activities are directly authorized under the Energy h
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s Edward E. Tucker' Thus, Section 2.111 applies the prohibition against sex discrimination to programs or activities carried on under the Atomic Jnergy Act or the Energy Reorganization Act. Section 19.32 further extends the ban against sex discrimination programs or activities licensed by NRC.
pretation could also be clarified. For example, it might be This inter-desirable to determine a uniform definition of activities subject to title IV for both the NRC and licensees. .
At a minimum, regulatory title IV prohibits sex discrimination in NRC licensing and activities. Title IV prohibits sex discrimination in programs or activities NRC (an agency created by the Energy Reorganization Act) carries on under the Energy Reorganization Act or the Atomic Energy Act.
The reasons described above for applying title IV to licensees and their employees are also valid here. Title IV can be interpreted to prohibit' sex discrimination by licensees against their employees in nuclear operations that are authorized by NRQ under the nuclear licensing legislation and thus a're part of the programs and activities carried on under that legis-lation. This interpretation is especially apropos in light of the fact that NRC itself administers few programs other than regulatory programs requiring or prohibiting actions of private licensees. To make the sweeping prohibition in title IV meaningful, licensees' employment practices would have to be included.
- 4. 11 hat specific procram must NRC follow in administerino Title IV?
Perhaps the most difficult cuestion is what must NRC do to implement title IV. Clearly the answer depends in large part on the answer to the preceding questions. The statute states:
This provision will be enforced through agency provisions and rules similar to those already estabitshed, with respect to racial and '
other discrimination, under title VI of the Civil Rights Ac't of l 1964. However, this remedy is not exclusive and will not prejudice or cut off any other legal remedies available to a discriminatee.
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Were it not for the language in title IV extending the prohibition against sex discrimination to denials of licenses and activities or programs carried on under the Act, title IV could be read merely to insert sex into the categories of forbidden discrimination under title VI of the Civil Rights Act. It is clear, hcwever, that title IV goes beyond
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Edward E. Tucker' sex discrimination by recipients of Federal financial assistance.O The phrase "any program or activity carried on. . .under any title of this act" indicates some activity over and above those receiving financial aid. .
The directions for implementation in the statute address cnly programs receiving Fedaral financial assistance and thus provide no guidance with regard to enforcement and implementation of the other portions of the prohibition against. sex discrimination. The regulations offer little more guidance. Section 2.111 implies that NRC is to refrain from sex discrimination in its licensing, but outlines no specific program.
Section 19.32 is worse, suggesting an inappropriate enforcement scheme ,
through 10 CFR Part 4, if read literally. Although it is possible to !
apply by analogy subpart B of part 2 to the enforcement of Section 19.22, .
this in no way provides a resolution of the issue of what NRC should do to implement title IV.
Mere clarification of procedures for handling a complaint of sex discrimi-nation will not resolve fundamental questions about NRC's monitoring and administrative duties under title IV. Therefore, much work of a policy nature will need to be done before an answer to the final question can be found.
O In this connection, S. Rep. No.93-980, 93d Cong., 1st Sess. 80 l (1974) provides in full: l 1
TITLE IV - BAR AGAINST SEX DISCRIMIliATION Section 401 ba rs sex discrimination in connection with any license, ac tivi ty, or Federal assistance under this act.
Sex discrimination is prohibited under title VII of the 1964 Civil Rights Act, which relates to employment by firms with 15 or more employees and has been amended to include State and local governments, but sex discrimination is not prohibited under title. VI, which relates to federally amendment says assisted programs and ' activities. This that no person shall on the ground of sex be excluded from or denied the benefits of, or be subjected to ,
discrimination under any program in this particular l act. Until such time as title VI of the Civil Richts
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Act is amended this approach remaini necessary.
Such language has been added to the Federal Aid Highway Act of 1973, the Water Pollution Control Amendments of 1972, the Nurses Training Act and a variety of other public laws. -
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Other foms of discrimination It might appear both logical and desirable for the NRC to ta'<e action to l prohibit other forms of discrimination in acdition to sex discrimination as it implements title IV. There are, hcwever, legal obstacles c'sucn a i course of action.
. In NAACP v. Federal Pcwer Commission, 423 U.S. 890 (1976), the Supreme Court held that the FPC could require equal employment opportunity and nondiscrimination in the employment practices of its regulatees only to the extent that Congress authorized the FPC to combat discrimin6 tory employment practices. In the case of the FPC (which has no statute comparable to. title IV), the Court found that the agency had no authority to require equal opportunity programs of its regulatees, except to the ,
extent that a discrimination of just and reasonable rates under the Natural Gas Act and the Federal Power Act might entail a denial of un-necessary labor costs due to discrimination. Thus, under the rule of NAACP v. Federal Pcwer Commission, regulatory agencies may impose non-discrimination programs upon tneir regulatees only insofar as such pro-grams are authorized by statute.
In a memorandum dated July 9,1976 to the Ccmmission, the General Counsel interpreted the NAACP case as strictly lii..iting NRC involvement in the employment practices of its regulatees. The General Counsel stated:
. . .[S]ince the NRC has no statutory duties comparable to those of FCC in ensuring representation of minority views in it has no authori ty to become di rec tly broadcas involved ting ,loymentpractices on any explicit statutory in emp basis. On a scale from the FCC to the FPC to the NRC, the NRC may be said to have the least authority to become involved in employment practices.
The memorandum described the furthest reach of NRC's responsibilities in this area as: a situation in which discriminatory employment practices might expose minority workers to greater radiological risks; a situation in which discriminatory hiring of reactor operators mignt involve NRC indirectly in such discrimination when it licensed those operators; and perhaps a situation in which discriminatory employment practices might have such a demoralizing effect on employees that reducec safety and security at the nuclear facility might result. The memorandum conciuces, "It is suggested that under the NAACP case, NRC authority in the area of employment discrimination does not extend beyond the outlined areas."
The General Counsel's memorandum did not address title IV, However, there is nothing in title IV to indicate that it was intended to extend t
to other forms of discrimination than sex discrimination. Each reference t
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to title IV in the statute, its legislative history, and the regulations addresses sex discrimination only. Although it cculd be argueo that'it makes little sense for Congress to prohibit only certain kincs of discrim-ination, this is exactly what Congress admittedly did in title VI of the Civil Rights Act. The Senate report for the Er.ergy Recrganization at c indicates that title IV was inserted because title VI of tne Civil Rights Act failed to include sex dis:rimination in its prohibition of discrimina-tion by recipients of Federal financial assistance. '
In sum, there appears to be no legal authority for extending the prohibi-tion againt discrimination in title IV to other forms of discrimination than sex discrimination. The NAACP case limits agency activity in this
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area to programs authorized by statute, the General Counsel has further interpreted this to limit strictly'NRC involvement in tne employment practices of regulatees, and title IV offers no support for such involve-ment in forms of discrimination other than sex discrimination.
Conclusion There are no certain legal answers to the questions raised by title IV, although at a minimum NRC must refrain frcm discriminating ' in its licensing and regulatory activities. The regulations provide a partial solution to some of the problems, but it should be recognized that the regulations are capable of improvement. Ultimately, the interpretation of title IV rests with the discretion of the Commission. It will have to decide upon an interpretation that makes the most sense from policy and administrative aspects. The interpretation of title IV should result in a fair and enforceable' program. Finally, although open to question on grounds of equity, the 1aw is such that title IV authorizes NRC involve-ment in sex discrimination alone.
JfS Howard K. Shapar Executive Legal Director 2/ ee S footnote 5. -
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1 EHCLOSURE D A Department of Justice Task Force on Sex Discrimination was established in nugust 1977 to coordinate a review of all laws, regulations, guidelines, policies and procedures of the Federal government for actual or potential j discrimination on the basis of sex. In September 1978 the Task Force met with representatives of the Office of the ELD and NRC Staff assigned the l 1
responsibility for coordinating the Task Force activities in the NRC (a i staff person from the Office of Management and Program Analysis and the PWPM).
During these discussions, questions were raised concerning the appropriate-ness of NRC regulations intended to implement Title IV, Section 401 of the Energy Reorganization Act of 1974 (P.L.93-438), (hereafter referred to GS Section 401).
The Task Force noted that the NRC has included provisionr of Section 401 of the Energy Reorganization Act in 10 CFR Part 4, which offectuates the pro-visions of Title VI of the Civil Rights Act of 1964 (Non discrimination in Commission Federally Assisted Programs). It was noted that Title VI applies to discrimination on the basis of race, color or national origin in programs receiving Federal financial assistance. Section 401, however (according to l the Justice Department Task Force), applies to discrimination on the basis of sex in the granting of licenses, by holders of NRC licensees, or by l
l recipients of NRC Federal financial assistance. Therefore, the Title VI i
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limitations found in 10 CFR Part 4 (such as the exemptions of employment practices) are inappropriate .for the Section 401 prohibitions. (Section 401 has been interpreted by Justice to prohibit sex discrimination in emoloyment prac tices) .
l The Task Force further believes that Section 401 prohibits discrimination in three distinct categories:
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- 1. Discrimination by the NRC in granting licensees (Section 401 provisions have been placed in 10 CFR Part 2 - Rules of Practice for Domestic Licensing Proceedings).
- 2. Discrimination by Recipients of Federal Assistance, including the distinctive exceptions of Title VI (employment practices) and,
- 3. Discrimination by licensees. (Prohibitions currently contained in Part19).
In addition, the Task Force is of the opinion that all NRC supported training programs for state personnel (covered under Part 4 - Non-Discrimination in Commission Federally Assisted Programs) should also be covered by Title IX of the Education Amendments of 1972, which prohibits sex discrimination '
under any education program or activity receiving Federal financial assistance.
9 In order to adequately implement the provisions of Section 401, the Task Force has proposed the following plan for amendment of NRC regulations:
- A. - Clarify enforcement procedure for Section 401 by:
- 1. Repeal 10 CFR Section 2.111 - Prohibitions of sex discrimination, and amend Part 2 to encompass enforcement of Section 401.
- 2. Amend 10 CFR Part 4 to indicate that Part a enforces Section 401 only insofar as recipients of NRC financial assistance are con-cerned, i.e., Part 4 does not enforce sex discrimination pro-hibitions relating to employment practices of licensees.
- 3. Amend 10 CFR Part 19 " Notices, Instructions, and Reports to ,
i Workers : Ins pections . " Specifically, section 19.32 should be i modified to require that notices, instructions, and reports to workers include reference to prohibitions against sex discrimina-tion by the licensee and procedures for filing complaints with the NRC and sanctions for violation of the regulation.
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- 4. Include application of Section 401 to, and require notice of l Section 401 rights in, all activities licensed by NRC under:
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- a. 10 CFR Part 10 - Access to Security information
- b. 10 CFR Part 30 - Rules of General Applicability to Licensing Byproduct Material
- c. 10 CFR Part 40 - Licensing of Source Material
- d. 10 CFR Part 50 - Licensing of Production and Utilization Facili ties ,
- e. 10 CFR Part 70 - Special Nuclear Material Licensing
- f. 10 CFR Part 71 - Licensing of Transportation of Radioactive Material The Task Force believes that these changes would assure that provisions similar to those now contained in.10 CFR 19.32 and 2.111 would be applied to all NRC licensed activities.. Moreover, before any NRC license were granted, the applicant should be required to show no violations of Section 401.
Violation of Section 401 would be ground for not granting a license suspen-sion or revocation of a license, or for imposing civil penalties as currently provided in 10 CFR Part 19.32. (Interpretation of Justice Department Task Force.)
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ENCLDSU8E E Generally, FCC procedures for enforcing' non discrimination in employment provisions are as follows:
- a. Require licensees to develop and implement an affinnative EE0 program based on guidance from, and review by, the FCC.
- b. Monitor results of EE0 program and as appropriate evaluate data by race and sex on applicant flow, hires, promotions and terminations.
- c. Conduct field investigations in cases where there is a significant factual dispute.
- d. Require hiring goals and timetables were appropriate.
- e. Complaints must be filed while the alleged discrimination is f occuring or within 180 days frcm the time of the alleged discrimination.
A memorandum of understanding exists between the FCC and the Equal Employment Opportunity Commission which establishes the following:
- a. Complaints received by FCC which come within FCC and EE0C .jurisdic-tions are processed by the EEOC.
- b. Canplaints received by EEOC which are not within its jurisdiction but FCC's are processed by FCC under its cwn rules, policies and procedu res .
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The procedures also provide for the EEOC to advise the FCC when reasonable cause determinations are made against a licensee. Where such a finding is made and the comolainant and the licensee fail to settle their dispute through the EEOC conciliation process, the FCC is required to issue a letter to the licensee, noting the failure of conciliation, and ordering the licensee j to submit additional information, or otherwise show cause why the license should not be tenninated. l 1
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ENCLOSURE F TITLE IV, ENERGY REORGANIZATICN ACT OF 1974 The Office of EE0 maintains, in principle, those views expressec in the February 11 1975 memorandum to the Commission relevant to this matter (Enclosure G), and does not concur in the recommendation that Section 401 apply only to the Commission in connection with licensing activities.
The legal staff reviewed NRC statutory recuirements contained in the Reorganization Act of 1974, and subsequently codified Section d01 provisions into the NRC regu-lations. The Department of' ustice has since reviewed our provisions to effectuate the requirements of Section 401, as has agreed in principle with these actions as noted in Enclosure D. ,
The arguments set forth in the recommendation relating to duplication of efforts of other Federal establishments, and the question of the appropriateness of the deployment of additional personnel to assure implementation, should not, in my estimation, be the rationale for determining Commission responsibility in any area. l The Cffice of EE0 would recommend that the Commission reaffirm its responsibility for assuring compliance with Section 401, not only in its own licensing activities, but also the employment practices of Licensees or applicants for licenses. In i the extremely sensitive and difficult area of civil rights compliance, it would l appear to be, necessary and appropriate for assistance from all quarters. Even though l the EE0C and the 0FFCP have primary responsibilities for enforcing non-discrimination ;
in employment in the Federal sector and by Government contractors respectively, the overall Federal effort to achieve equality of employment opportunities would obviously be enhanced with the additional leverage that could be brought to ,
bear in light of NRC prohibitions and sanctions as they pertain to NRC licensees '
and applicants.
As far as additional staff requirements for implementation is concerned, and the possible inability to adequately implement high priority redirected programs, I agree that radiological health and safety considerations should take priority. l This also should not, however, be a major' determinant with respect to a decision on civil right responsibilities. Taking into account high priority programs, it would still appear prudent to develop minimum enforcement procedures based on the ability to corrmit staff. This could primarily take the form of technical assistance, on a limited basis, to promote compliance with Section 401.
Although implementation and enforcement would unquestionably be difficult, the impact could be lessened through development of rational enforcement procedures, particularly in the area of sanctions. The Department of Justice recommends, inter alia that the NRC regulations requiring civil penalty or revocation of a license for violation of Section 401, as provided in 10 CFR Part 19.32, be retained.
Justice also proposes that applicants for licenses show no violation of Section 401 as a condition for licensing.
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-2 I propose that although we apply the provisions of Section 401 to licensees and applicants, that civil penalties be applied only in instances when there is a formal determination of violation by an appropriate administrative authority (EEOC, 0FCCP or the NRC). Moreover, revocation could be considered only in cases where all compliance efforts have failed. This approacn appears appropriate recognizing that Section 602 of Title '/I of the Civil Rignts Act of 1964
("on-discrimination in Federally Assisted Programs) crovides that no federal funds shall be terminated unless and until it has been determined that compliance cannot be secured by voluntary means. This approacn also would lessen the impact of possible frivolous complaints designed primarily to negatively impact the licensing process or close a facility, and at the same time increase the likelihood of compliance in view of the sanctions available to the Commission for non-compliance. With regard to provision that licensees or applicants show no violation of Section 401 as a condition of licensing, it would seem that rather ;
than be required to show no violation, any evaluation would lean toward affirmative efforts to achieve equal empidyment opportunities for women, taking into consideration affirmative action planning by licensees or applicants and corrective action in the case of formal determinations of discrimination. It would appear to me that the major thrust of non-discrimination statutes is to provide equitable relief from injury resulting from discriminatory practices. Revocation of a license not only could have serious economic consequences, but also a negative impact on a large number of workers (including the complainant) .in view of the unemployment created by the closing of licensee facilities. In addition, in the I case of medical facilities or manufacturers of radiopharmaceutical revocation of i a license would be highly impractical . l The Office of EE0 recommends that the Commission interpret the provisions of I Section 401 to be applicable to the Commission in its licensing activities, as well as the employment practices of licensees and applicants. It is further recommended that' the NRC explore the feasibility of the EE0C investigating and adjudicating sex discrimination complaints filed pursuant to Section 401'.
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