ML20209E160

Requests Commission Approval of Rev to NRC Manual Chapter 4125, Differing Prof Opinions. Recommends More Emphasis on Establishment of Timely Procedures for Resolution of Differing Prof Opinion

ML20209E160
Person / Time
Issue date:	03/05/1985
From:	Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
Shared Package
ML20209D524	List: IA-85-409, Recommends Commission Approve Inclusion of Permanent Record Dosimeter in Min Acceptable Personnel Dosimetry Sys for Offsite Emergency Workers Proposed by Federal Radiological Preparedness Coordinating Committee ML20209D521 ML20209D717 ML20209D988 ML20209E149 ML20209E154 ML20209E160 ML20209E165 ML20209E176 ML20209E182 ML20209E389 ML20210F421 ML20210F534 ML20210F656
References
FOIA-85-409, TASK-PINC, TASK-SE SECY-85-077, SECY-85-77, NUDOCS 8504050262
Download: ML20209E160 (53)

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March 5, 1985 POLICY ISSUE secv-8s-77 (NEGATIVE CONSENT)

For:

The Cranissioners From:

William J. Dircks Executive Director for Operations

Subject:

DIFFERING PROFESSICNAL OPINIONS

Purpose:

To request Comission approval of a revision to NRC Manual Chapter 4125, " Differing Professional Opinions."

Background:

In September 1980, NRC issued Manual Chapter 4125, " Differ-ing Professional Opinions," establishing procedures to provide for the expression and resolution of differing professional opinions concerning matters related to the agency's mission.

Section 4125-03 of the manual chapter requires the ED0 to annually appoint a Special Review Panel to evaluate and report on the functioning of the procedures. A Special Review Panel was appointed and met on September 10, 1982.

In May 1983, SECY-83-198 was sent to the Commission requesting approval of a revision to Manual Chapter 4125, incorporating changes recommended by the Panel as well as changes identified by NRC management during its review of the Panel's proposed changes.

In January 1984 the Commission returned SECY-83-198 without action, asking for resubmittal after a requested OIA audit of the DP0 program. The OIA audit was sent to the Comission in December 1984.

Recomendations made by OIA are reflected in the attached new proposed revision to Manual Chapter 4125.

Discussion:

The attached manual chapter reflects changes recomended by the Special Review Panel, changes identified by NRC management' during its review of the Panel's proposed changes, and changes recomended by OIA. The highlights of these changes are discussed below.

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The Commissioners The Special Review Panel's recommendations include the follow-ing:

1) more emphasis on establishment of timely procedures for the resolution of differing professional opinions;

2) provisions for maintenance of written records to provide accountability for actions taken to resolve DP0's;

3) the addition of responsibility statements for Regional Administrators and the Office of Resource Management con-cerning the processing and resolution of statements of differing professional opinions;

4) provision for RM to submit to the Commission an annual, rather than a quarterly, report on DPO's and actions taken to achieve their resolution.

The changes identified by NRC management include the follow-ing:

1) addition of a statement to indicate that RM maintains a file of all initial and final DP0's handled by NRC;

2) deletion of an itemized list of objectives of the proce-dures that are discussed in detail in the manual chapter and its appendix;

3) addition of a requirement for Director of Resource Manage-ment to notify the EDO of any DP0's that are not being resolved within the prescribed schedule;

4) addition of a sunnary and schedule of the DP0 resolution process;

5) minor editorial. changes to clarify the intent of the pro-cedures;

6) addition of a statement that managers advising employees to file DPO's will inform the employees' management of that action;

7) deletion of " time of other NRC professional personnel in-a consulting capacity" from resources to assist origina-tors of DP0's.

The changes recommended by OIA include the following:

1.

Establish criteria for the appointment of peer review groups.

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2.

Require the use of a control number for each DP0 for better control purposes.

3.

Require that documention for each DP0 be held centrally in each cognizant office.

4.

Highlight that the filing of a grievance is the formal means by which to address alleged retaliation for having filed a DPO, but recognize the additional right of the "Open Door" policy.

For ease of review also attached is a line in/line out version of the Manual _ Chapter showing all proposed deletions and additions from the September 1980-Manual Chapter.

Recomendation:

The Staff recomends that the Comission approve the revised manual chapter for publication. The Staff plans to publish the attached manual chapter as revised. Please indicate within 10 working days if you have any ccmments on the manual chapter before its publication.

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j i,w William J. Dircks Executive Director for Operations Attachments:

1. Revised Manual Chapter 4125,

" Differing -Professional Opinions" v

2. Line in/line out Version of l

Manual Chapter 4125

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SECY NOTE:

In the absence of instructions to the contrary, SECY will notify the staff on Wednesday, March 27, 1985 that the Commission, by negative consent, assents to the action proposed in this paper.

DISTRIBUTION:

Commissioners EDO OGC ELD OPE ACRS OI ASLBP OCA ASLAP OIA SECY OPA REGIONAL OFFICES

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I Form NRC-489 (1 76)

U. S. NUCLEAR REGULATORY COMMISSION' NRC MANUAL TRANSMITTAL NOTICE SUPERSEDED:

TRANSMITTED:

Number Date Number Date TN Chapter Chapter Page.

Page Appendix Appendix REMARKS:

This revision reflects the evaluation and report of the Special Review Panel as well as requests from NRC management and recommendations of the Office of Inspector and Auditor and includes:

1. more emphasis on the establishment of timely procedures for the resolution of differing professional opinions (DP0's).

2. requires Office Directors and Regional Administrators to provide for maintenance.of written records to provide accountability for actions taken to resolve DP0's and to place completed cases in i

centrally located office files.

3. statements of responsibilities for Regional Administrators and i

for the Office of Resource Management concerning the processing and j

resolution of statements of differing professional opinions.

4. provision for the Office of Resource Management to submit to the Comission an annual, rather than a quarterly, report on DP0's and actions taken to achieve their resolution.

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5. statement indicating that RM maintains a file of all initial and final DPO's tandled by NRC; and requirement that the Director, RM, will notify 'the EDO of any DP0's that are not being resolved within the prescribed scheduled.

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6. statement that managers advising employees to file DP0's will infonn

.the employees' management of that action.

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7. addition of a sumary and schedule of the DP0 resolution process.

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2 8., requires Office Direc$ ors and Regional Administrators to obtain a control number for.each OP0 from RM.

9.

highlights methods to address alleged retaliation for having filed a DPO.

10. requires Director of Office of Administration to provide an over-view of the DP0 program in orientation of new employees.

Items 8, 9 and 10 and the last part of 2 were recomended by OIA. The rest are the same as included in SECY-83-198, May 20, 1983.

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U.S. NUCLEAR REGULATORY-COPHISSION NRC MANUAL n

Volume: 4000 Personnel' Part :.4100 Federal RM CHAPTER 4125 DIFFERING PROFESSIONAL OPINIONS 4125-01

. COVERAGE This chapter and appendix comprise NRC policy, objectives, procedures, respon-sibilities and other basic requirements and definitions established to provide for the expression and resolution of differing professional opinions concerning matters related to the agency's mission.

4125-02 POLICY AND OBJECTIVES 021' Policy.

It is the pol. icy of the Nuclear Regulatory Comission, and the responsibility of all NRC supervisory and managerial personnel, to main-tain a working environment that encourages employees to make known their best professional judgments 'even-though they may differ from a prevailing staff view,' disagree with a management decision or policy position, or take issue with proposed ~or established agency practices.

Each differing profes-sional opinion of an NRC employee will be evaluated on its own merit.

Fur-ther, each differing professional opinien will be pursued to! resolution and the employee's statement of differing professional opinion, together with the agen-cy's final response, will be made available to the public to ensure the open-ness of NRC decisions that may affect the public It is not only the right but the duty of all NRC employees to make known their best professional judgments on any matter relating to the mission of the agency..Moreover, both the general public and the Nuclear Regulatory Com-mission benefit when the agency seriously considers NRC employees' differing

. professional opinions that concern matters related to the agency's' mission..

This policy.is intended to assure all employees the opportunity to express dif-fering professional opinions in good faith, to have these opinions heard and considered by NRC management, and to be protected against retaliation in any form.

022 Objectives.

To provide an effective and timely procedure for expres-sing and resolving differing' professional opinions.

4125-03 RESPONSIBILITIES AND AUTHORITIES l

031 The Executive Ofrector for Operations:

l a.

assures that a written record is maintained to provide accountability

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for all subsequent actions taken to resolve the differing professional opinions.

b.

ensures that differing professional opinions which are not resolved within four calendar months after their submission are resolved by the responsible office director as promptly as is practicable.

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' annually appoints a Special Revjew Panel to evaluate and report on the functioning of the differing professional opinion procedures.

032 Directors of Offices and Regional Administrators:

a.

detennine actions to be taken on statements of differing' professional opinion.

b.

obtain a unique control number from RM to place on the original DP0 and all subsequent correspondence and documentation on that DPO.

c.

within 10 days of its submission, forward the differing professional opinion either. to the appropriate manager within his or her own office or to the director of the office with basic responsibility for the

' issues raised in the differing professional opinion with copies to the EDO and Director of Resource Management.

d.

convene an impartial peer review group to address the' substance.of the issues raised either when requested by the originator or when he determines that the complexity of the issues raised justifies such..

a review.

e.

inform the Atomic Safety and Licensing Board Panel and the Atomic Safety and Licensing Appeal Panel of any differing professional opin-fon that relates to issues pending before them or schedu. led for their consideration.

f.

assure that every effort is made to expedite the resolution of differ-ing professional opinions within the time frame specified in Appendix Section G.2.a.

g.

provide the originator with a copy of the peer review group's report.

h.

inform EDO of reasons for delay and submit, for EDO approval, a pro-

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posed plan for resolution of DPO's not resolved within four calendar months after submission.

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provide the originator with written notification of the resolution of his differing professional opinion with a copy to the Director of. Resource Management and EDO, and access to all documents generated in connection with its resolution.

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after the issue is resolved and the case closed, complete files on the DP0 will be maintained centrally by the cognizant office.

k.

provide the Office of Resource Management with an annual Differ-ing Professional Opinion Status Report.

(See Appendix'4125, Sec-tion G.4.)

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033.The Director, Office of Resource Management:

provides the dbnaission with an annual report identifying all differing a.

professional opinions submitted and specifying the actions that have been taken to achieve-their resolution.

b.

assigns a unique control number to each DP0 at the time the offices initially provide documentation.to RM on the origination of a specific DPO.

c.-

maintains a file of all initial and final DP0's handled by NRC.

d.

advises the immediate. supervisors of originators of DP0's of the -

requirements to maintain a written record to provide' accountability.

for all subsequent actions taken to resolve the differing professional opinions.

(See 4125-036 h.)

e.

notifies the EDO of any DPO's currently under review that are not anticipated to be resolved within 30 days after initial submission.

'034' The Director, Office of Administration requires the Headquarters and Regional personnel offices to include an '

overview of the DP0 program in the orientation for new employees.

035 The Advisory Committee on Reactor Safeguards:

a.

. appends comments to all referred statements of differing. professional y

opinion and forwards them for resolution to the appropriate office director, if the differing' professional opinion relates to a potsntial safety issue within their purview.

b.

responds te, appeals by an originator if the differing professional opinion concerns matters-of public health or safety.

036 Immediate Supervisors:

a.

advise and assist employees in administratively preparing adequate written statements of differing professional opinion and aid them in identifying related information.

b.

in consultation with their managers, determine the amount of the ori-ginator's work time and administrative support to be provided in response to the originator's request for assistance.

c.

receive signed statements of differing professional opinion from the originator.

d.

within five working days of receipt acknowledge receipt of statements of differing professional opinion by memoranda to the originators.

A copy of the acknowledgment memo and the DP0 statement is fonvarded to the EDO and the Director, Office of Resource Management.

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return to the originator any statement excluded from the definition ~

of a differing professional opinion together with a memorandum cit-ing the specific exclusion with a copy to the ED0 and Director of Resource Management.

f.

forward statements of differing professional opinion, via their chain-of-canmand, to his or her office director for action with a copy to the ED0 and Director, Office of Resource Management.

g.

assure that statements of differing professional opinion are incorpo-rated into the receiving organization's normal work tracking system.

h.

maintain a written record to provide accountability for all subse-quent actions taken to resolve the differing professional opinion while -

the DP0 is active.

1.

when the DP0 is completed or withdrawn, forwards the complete file to the Office Director's office, where it will be centrally maintained.

037 All Employees:

a.

make known their b'est professional judgments on any matter relat-ing to the mission of the agency by submitting to their immediate supervisor a signed statement of differing professional opinion when appropriate.

b.

luefore submitting a statement of differing professional opinion, should consult with their immediate supervisor.who will aid them in identifying related information and assist them, if requested, in clar-ifying the issues.

c.

may request an Open Door meeting with any manager to discuss their views.

d.

may request that their differing professional opinion be presented to an impartial peer review group for review, evaluation, and comment.

e.

may communicate a differing professional opinion concerning a poten-tial safety issue directly to the chairman or any member of the ACRS.

f.

may appeal the resolution of their differing professional opinion to a higher level of NRC management.

4125-04 DEFINITIONS 041 Differing Professional Opinion. A conscientious expression of pro-fessional judgment as contained in a written, signed statement submitted to one's innediate supervisor, or submission of an unsigned anonymous statement 4

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(see NRC Appendix 4125, Section H.1) which, on any matter relating to NRC's mission or organizational activities, differs from the prevailing staff view within an organization, disagrees with a management decision or policy position, or takes issue with a proposed or an established agency practice.

Differing professional opinions may involve technical, management, legal, or policy issues and are not limited to the originator's area of expertise. Matters that are subject to employee grievance in accordance with Chapter NRC-4157 and matters covered by the negotiated grievance procedure do not qualify as dif-fering professional opinions.

042 Manager. An employee who directs the work of an organization, is held accountable for specific line or staff programs or a_ctivities, and whose primary duties are managerial.

043 Peer Group. A group of NRC staff with expertise in the area covered by by a given DPO, convened for the purpose of addressing the substance of the issues raised by the DPO.

4125-05 BASIC REQUIREMENTS 051 Applicability. These procedures for the expression and resolution of differing professional opinions are for the use of all NRC employees includ-ing supervisors and managers: The procedures supplement other stated rights, duties, and safeguards applicable to all Federal employees who make their views known either within or outside their agencies, including:

a.

the independent right of free speech provided by the First Amend-ment to the U.S. Constitution.

4 b.

the right of government employees to petition the Congress (5 USC 7102).

c.

the rights of employces to comunicate directly with the Congress as outlined in the Code of Ethics for Government Service (10 CFR-0.735 - Annex A).

d.

provisions of the 1978 Civil Service Reform Act dealin'g'with pro-hibited personnel practices and the regulations of the Merit System Protection Board.

052 Appendix 4125. This appendix provides procedures for the expres-sion and resolution of differing professional opinions.

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' DIFFERING PROFESSIONAL OPINIONS.

NRC Appendix 4125

?J CONTENTS Page A.

Normal Differing Views vs. Differing Professional Opinions.........

I B.

' Primary Channel for Expressing Differing Professional Opinions....

1

, C.

Content of a Written Statement of Differing Professional Opinion...

2

. D.

Resources to Assist Originators of Differing Professional Opinions.. 2 E.

Acknowledgment,of Differing Professional 0 pinions..................

2 F.

Written-Record of Actions on Differing Professional Opinions.......

3 G.

Reso.lution of Differing Professiona l 0 pinions......................

.3

1. De fi n i t i o n o f Re s o l u t i o n.......................................

3

2. Resolution Process.............................................

4

3. Appeal.........................................................

6

4.. Repo rts to the Comi s s ion......................................

7 H.

Alternate Channels for Expressing Differing Professional...........

I 0 pinions...........................................................

7

1. Open Door Policy................................................

8

2. The ACRS........................................................

9 I.

Prevention of Retaliation Against Individuals who Express or Support Di ffering Professional 0 pinions....,.........................

9 J.

Prevent Intentional Misuse of Procedures for Differing Pro fe s s i ona l 0p i n i o n s.............................................

10 K.

Special Review Panel for Follow-up on Functioning of Differing Pro fess iona l Op i n ion Procedu res...................................

10 L.

Recognition of Originators of Significant Differin 0 pinions..........................................g Professional 11 I.

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Approved:

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PROCEDURES FOR THE EXPRESSION AND RESOLUTION OF DIEFERING PROFESSIONAL OPINIONS n

A.

Normal Differing Views vs. Differing Professional Opinions-A normal differing view, developed in the frae and open discussion of work matters, becomes a differing professional opinion only when the originator brings it to NRC management attention in accordance with these procedures.

In the free and open discussion of work matters, professional differences of opinion are cosmon.

Employees may also develop critical views con-cerning matters other than their personal work assignments, such as is-sues under consideration in another part of NRC or relating to an agen-cy practice or position that is neither currently under review nor in the agency's decisionmaking process.

In both these instances employees normally try, and should be encour-aged, to resolve their concerns through discussions with their co-workers and immediate supervisors.

In some cases, such discussions may lead to the submission of a ' suggestion as part of the NRC sug-

'gestion program (Chdpter NRC-4154).

However, these informal discussions may not resolve the matter and an employee may be convinced that the agency and the public would be bet-ter served if another opinion prevailed. To further pursue such con-.

cerns using these procedures, an employee should submit a written-statement of differing professional opinion in accordance with these j

procedures.. With the submission of this statement, the employee's dif-fering view becomes a differing professional opinion..

An employee may not use these procedures for differing professional opinions without submitting a written statement.

The employee may, how-l ever, express any concerns orally or in writing to the ACRS and may also discuss these concerns with any NRC manager as provided in the Open Door Policy (See Section H).

f B.

Primary Channel for Expressing Differing Professional Opinions These procedures are invoked when employees submit to their immediate supervisor a written statement of differing professional opinion. As indicated in the statement of policy, it is not only the right but the duty of all NRC employees to make known their best professional judgments on any matter relating to the mission of the agency.

Before submitting the statement, employees should consult with their im-med16te supervisor who will aid them in identifying related information and assist them, if requested, in clarifying the issues.

Originators of differing professional opinions may request agency resources for prepar-ing adequate written statements of differing professional opinion and such requests shall include estimates of the resources required.

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C.

Content of a Written Statement.of Differing Professional Opinion i'

A written statement of differing professional opinion, while being brief,.

should in all cases include the following:

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1.

a sumary of the originator's perception of the prevailing staff

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view, existing management decision or stated position, or the pro-

' posed or established agency practice.

2.

a description of the originator's opinions and how they differ from any items discussed in 1. above.

3.

a statement of the originator's assessment of the resulting conse-quences if the differing professional opinion is not adopted by the agency.

D.

Resources to Assist Originators of Differing Professional Opinions i :

To assist originators in preparing adequate written statements of. differ-ing professional opinion, NRC management will allow a reasonable amount of.the originator's work time,and' administrative support.

If called to 4

testify before a Licensing Board or an Appeal Bosrd, the employee may receive, upon request, assistance from the staff legal office in

-preparing testimony or other documents to bc: filed with the Board.

Such assistance wi.11 be solely for the purpose of facilitating the filing of the necessary documents and will not constitute legal representation of the employee by the legal staff. At the hearing, the employee may be questioned by the staff attorney participating in the proceeding whenever such examination is deemed necessary. The originator's immediate supervisor, in consultation with his or her menager, will determine the amount of the originator's work time and administrative support to be provided in response to the' originator's request for assistance.

E.

Acknowledgment of Differing Professional Opinions l

The immediate supervisor shall, upon receiving a written statement of differing professional opinion, discuss the statement with the originator if this has not previously been done.

In addition, the immediate supervisor must, within five working days, acknowledge receipt by a memorandum to the originator with a copy to the EDO and a copy to

.the Director, Office of Resource Management. This memorandum wf11 also indicate the actions that will be taken to resolve the differing pro-fessional opinion; Upon receipt, statements of differing professional opinion will be incor-porated into the receiving organization's nomal work tracking system.

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This tracking should assure that the status of each differing professional opinion is regularly reviewed, aid in its prompt resolution, and provide j

a systematic basis for keeping the originator informed.

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Written Record of Actions on Differing Professional Opinions Once a differing professfonal opinion has been submitted, a written record must be maintained by the immediate supervisor while the DP0 is active to provide accountability for all subsequent actions taken to resolve that differing professional opinion on its merits. This record will consist of signed notations of all supervisory and managerial determinations and actions based upon the differing professional opinion.

Changes in the original documentation that are requested by the originator will also be made a part of this written record. Copies of the initial a~nd the final DP0 documents will be sent to the Director, Office of Resource Management and EDO. All pertinent documentation will be retained by the supervisor while the DP0 is active and centrally by the Office Director for a period of ten years after the DP0 becomes inactive.

G.

Resolution of Differing Professional Opinions 1.

' Definition of Resolution A differing professional opinion is considered resolved by the NRC when:

a.

NRC management adopts the views expressed in the originator's written statement of differing professional oninion; or b.

NRC management adopts a part of the judgments exprassed in the originator's written statement of differing proimional opinion and informs the originator of the reasons for not adopting the remainder; or c.

The responsible office director determines that evaluation of the differing professional opinion fails to justify modifica-tion of a management decisien, policy position, or a proposed or an existing agency practice; or d.

The responsible office director determines that the impact of the potential consequences stated in the differing professional opinion is insufficient to justify a detailed evaluation of the differing professional opinion; or e.

The differing professional opinion is withdrawn by the originator.1 IIn such cases, NRC management may elect to pursue the matter further based on its merit even though it is no longer considered to be a differing professional opinion.

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In each of the preceding cases, the resolution process is complete only when the originator has-been informed of the decision or action of NRC management and, consistent with security classification policy, both the statement of differing professional opinion and the response of NRC management have been placed in NRC's Public Document Room.

2.

Resolution Process.

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a.

Summary and schedule of resolution process:

Originator submits DP0 to immediate supervisor; (Within five working days of receipt) Immediate supervisor forwards DP0 to Office Director with comments of all others in chain-of-command appended; (Within 10 working days of submission) Office' Director forwards DP0 to appropriate manager for action [If transferred to

. another office, DP0 must be assigned to responsible program manager within 15 working days after submission by originator.);

(Within 15 days after submission) Office Director informs ASLBP and ASLAP of any DP0 that relates to issues pending before them or scheduled for their consideration; (Within~30 working days after assignment to responsible manager) DP0 normally resolved; f

(Four calendar months after submission) If DP0 not resolved, responsible Office Director informs EDO of reasons for delay and submits, for EDO approval, a proposed plan and schedule

-for completing resolution.

b.

Whe.n submitting a differing professional opinion, the originator may request that it be presented to an impartial peer review group for review, evaluation, and comment.

If such request is not made by the originator, and if the responsible office director determines that such review is justified by the complexity or the potential significance of the issues raised, he shall convene an impartial peer review group to address the substance of the issues raised in the differing professional opinion.

In either case, the responsible office director will assure that members of the peer review groups convened for this purpose are specifically selected for their impartiality and professional competence concerning matters discussed in each differing professional opinion.

The responsibic office director

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will carefully consider peer review group recomendations in the resolution of applicable differing professional opinions and will provide the originator with a copy of the peer review group's report.

c.

Upon receiving a statement of differing professional opinion from the originator', the imediate supervisor will forward it, via the chain-of-comand, to his or her office dire ~ctor for action with copies to EDO and Office of Resource Management.

~ The imediate supervisor and all others in the chain-of-command shall append their views concerning matters discussed in the differing professional opinion.

The differing.

professional opinion, with comments appended, shall be provided to the office director within five working days after its submission by the originator.

Copies of these coments, together with all other documents generated in response to the differing professional opinion, shall be made available to the originator as they are generated. At his option, the originator may submit written coments for the record concern-ing views expressed by his imediate supervisor or others in the chain-of-comand, or views expressed by intermediate NRC management personnel in the course of resolution of the differing professional opinion.

d.

The office director will obtain a unique DP0 control number and will forward the differing professional opinion, within 10 working days

~ its submission by the originator, either to the appropi, ate manager within his or her own office or to the director of the office that has basic responsibility for

.the issues raised in the differing professional opinion with copies to the ED0 and Director of Resource Management.

If transferred to another office for resolution, the differing professional opinion must be assigned to the responsible program manager within 15 working days after its submission by the originator.

The responsible manager will incorporate the statement of differing professional opinion into'the organization's normal work tracking system and, untf1 the differing professional opinion has been resolved, shall provide the originator with brief monthly status reports. Copies of these reports shall also be provided to the responsible office director.

The responsible manager will also inform the originator of other differing professional opinions received ~that are relevant to that submitted by the originator, e.

The responsible office director will, within 15 working days after its submission by an originator, infonn the Atomic Safety and Licensing Board Panel and the Atomic Safety and Licensing Appeal Panel of any differing professional opinion that relates to issues pending before them or scheduled for their consideration.

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Every effort shall be made to expedite the resolution of differing professional opinions.

Normally, a differing professional opinion should be resolved by the responsible office df rector'within 30 working days after its assignment to the responsible manager. An extension of 15 working days will, however, be automatically granted upon certification by the responsible manager.to the originator that: - (1) resolution of the differing professional opinion involves especially complex issues, (2) the workload of managarial personnel involved in J

resolution of the issues is temporarily heavier than normal, or (3).that resolution of the differing professional opinion involves the participation of several levels of NRC management.

Additional extensions of 15 working days each may be granted only upon application to and approval by the responsible office director who will. consider comments of both the managerial personnel involved and the originator with regard to the-proposed extension.

g.

If a differing professional opinion is not resolved within four calendar months after its submission, the responsible office director. shall inform the Executive Director for Operations (EDO) of the reasons for the delay and shall submit, for EDO approval, a proposed plan and schedule for completing its reso-lution.

The responsible office director shall provide the orig-

.inator with a copy of the EDO-approved plan and schedule for resolution.

The EDO will ensure that differing professional opinions in this category are resolved by the responsible office director as promptly as is practicable.

h.

The responsible office director shall provide the originator with written notification of the resolution of his differing professional opinion with a copy to the Director, Office of Resource Management (see Section 4125-03) and EDO, and access to all documents generated in connection with its resolution.

While the DP0 is active, the immediate supervisor will maintain the file. When the DP0 is complete or inactive, the Office Director will centrally maintain the file.

3.

Appeal l

The originator may appeal the resolution of his differing profes-sfonal opinion to a higher level of NRC management including a Commissioner or the Commission.

Normally, it would be expected that appeals by individuals assigned to Program Offices or to EDO Staff Offices would be submitted to the EDO and that individuals assigned to the Commission or to Commission Staff Offices would submit-appeals either to a Commissioner or to the Commission. Moreover, if f

a differing professional opinion concerns matters of public health or safety, the appeal may be forwarded through the ACRS with a request that the ACRS comment on the potential safety implications i

of the resolution that is being appealed.

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These procedures make no provision for further appeal of the reso-lution by NRC management of a differing professional opinion.

How-ever, originators who are dissatisfied with either NRC management's resolution of their differing professional opinion or the results of-their appeal of this resolution may further pursue their concerns via the Open Door policy or the ACRS as appropriate.

4.

Reports to the Commission The Office of' Resource Management (RM) shall provide the Commis-sion with annual reports identifying all differing professional opin-ions submitted and specifying the actions that have been taken to achieve their resolution. This information shall be provided by the responsible office, directors who shall, within five working days after each calendar year, provide RM with a Differing Professional Opinion Status Report that contains:

a.

A listing and a description of all differing professional opinions received together with a brief status report of all efforts that have been taken to achieve their resolution.

Items shall be reported and summarized in the following three categories:

(1) Differing professional opinions submitted since the-last status report.

(2) Differing professional opinions previously received and reported but not ytt resolved.

~

(3) Differing professional opinions previously received and reported that were resolved on the following dates.

b.

Infomation obtained from the originator of each differing pro-fessional opinion resolved during the year which indicates the originator's general reactions to these procedures. As a mini-mum, this information should include the originator's evaluation of the utility of these procedures for handling his or her dif--

fering professional opinion, areas in which these procedures inhibited rather than aided the achievement of their objectives, and comments or recommendations for improvement of these procedures.

H.

Alternate Channels for Expressing Differing Professional Opinions Two alternate channels are available for employees who prefer not to use the primary channel for expressing their differing professional opinions.

~0nce a differing professional opinion submitted via either of these two channels has been forwarded to the responsible office director, subse-quent procedural steps involud in resolution of the differing professional opinion are essentially identical with those prescribed for the primary channel. The basic difference between the primary channel and the two alternatives discussed below is that the alternatives permit the originator to select the individual manager to whom the differing professional opinion will be submitted and, in addition, they make provision for the submission of anonymous differing professional opinions upon request.

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1.

Open Door Policy The Open Door Policy of NRC provides that NRC employees may, on their own initiative, meet with any. manager, including a Commissioner.or the Chairman of NRC, to discuss any matter of concern to the employee.

Employees may request an Open Door meeting directly with the selected manager's secretary or adminis-trative assistant and there is no requirement for the approval of requests for such meetings by intermediate management.

An employee's reouest for anonymity will be honored by any manager contacted via the Open Door except in two special situa-tions that could occur if the manager contacted is an NRC Comissioner. Cach Comissioner is.1egally required to inform all other Comissioners of any information which he believes to be related to the responsibility or the function of the Commission.

(This requirement for mandatory infonnation sharing applies only to the Commissioners and does not extend to others within NRC.)

Subject to this constraint, NRC Comissioners will honor an employee's request for anonymity made in connection with communi-cations via the Open Door. Therefore, when an employee requests anonymity in an Open Door contact with a Comissioner, no Commis-sioner will disclose to another Comissioner the identity of the employee unless (a) as a practical matter it is impossible to convey the substance of the information without making known the identity of the employee, (b) disclosure of the employee's identity to the other Comissioners is,essentf altfor determination of the accuracy and reliability of the information, or (c) the employee's identity is requiredtobereleasedbflaw.

If Open Door discussions disclose that an employee's views constitute a differing professional Spinion, the contacted manager should advise the employee to submit a signed, written statement of differing professional opinion in accordance with these procedures and should inform the employee's management that he has been advised to prepare such a statement.

If the employee insists on remaining anonymous but wishes to have his or her views considered as a differing professional opinion, the employee should submit an unsigned statement of differing professional opinion to the manager contacted via the Open Door and that manager will forward tha anonymous statement of differing professional opinion to the office director having 'programatic responsibility for the issues raised in the differing professional opinion.

Resolution of the differing professional opinion will then be completed in accordance with these procedures. To protect the employee's anonymity in such cases, however, it may not be possible to provide the acknowledgment of receipt of the differing professional opinion or the reports on resolution directly to the originator of the differing professional opinion.

In such cases, the manager originally contacted via the Open Door shall relay to the originator both the acknowledgment of receipt and all reports received by that manager concerning resolution of the differing professional opinion.

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. Differing opinions not expressed in writing as required by Section C shall be considered to be normal differing views as discussed in 1-Section B, and may not be pursued further using the procedures

-for differing professional opinions.

Open Door discussions between employees and managers may also relate to subjects other than normal differing views and differing professional opinions.

In these cases, the managers contacted will work to resolve an employee's concerns, to answer any questions, and to honor any m uest for anonymity. Honoring a request for i~

anonymity may, however, limit a manager's assistance either to dis-cussions with the employee or to providing advice and counsel on matters of concern to the employee.

Managers should advise employees of the proper channels to be used i

for the resolution of concerns that may not be resolved using' these procedures for differing professional opinions.

If the contacted manager believes that others should be notified of issues raised in these Open Door discussions, he should notify offices with program-matic responsibility, and others (e.g., the Office. of Inspector and Auditor).

2.

The ACRS i

If the differing professional opinion relates to a potential safety j

issue wf thin the purview of the Advisory Comittee on Reactor Safe-i guards, an NRC employee may communicate orally or in writing directly with the Chairman or any member of the ACRS.

Such com-munication may be anonymous. The ACRS will append comments, as 4

appropriate, to all referred statements of differing professional opinion and will forward these statements for resolution to the appropriate NRC office director.

An NRC employee may also appear before the ACRS or an ACRS Subcommittee as deemed appropriate by the Comittee.

The ACRS will assure that all. such statements that do not constitute a differing professional opinion are forwarded to the appropriate NRC office director for information.

[

I.

Prevention of Retaliation Against Individuals Who Express or Support Differing Professional Opinions Any NRC employee who retaliates against another employee for submitting or supporting a differing professional opinion is subject to disciplinary J -

action in accordance with Chapter NRC-4171 (Separations and Adverse Actions). This applies to retaliatory actions described in the following paragraph and to all prohibited personnel practices specified in 7

Section 2302, Title 5, U.S. Code, as amended by the Civil Service Reform l

Act of 1978.

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Retaliation consists of-injurious actions taken against the originator of a differing professional opinion in which a motivating factor for such actions derived from the submission of a differing professional opf_nfon s

by the originator.

Retaliation may involve transfer; detail; ostracism; loss of staff assistance, space, or equipment; physical isolation; the absence of assignments involving substantive work; or the denial of promotion', attendance at professional society meetings, or justified training.

t Employees who allege that retaliatory actions have been taken because of their submission or support of a differing professional opinion may seek redress through the negotiated grievance procedure or through the

[

grievance procedure described in Chapter NRC-4157 (Employee Grievances).

This is the formal route. Employees may also use the "Open Door Policy" as described in Section H1 of this appendix.

J.

Prevent Intentional Misuse of Procedures for Differing Professional Opinions No NRC employee should intentionally misuse these proceduren.

Examples of intentional misuse would include but not be Ifmited to frivolous use, attempts to treat a personnel-grievance type action as a differing profes-sional opinion, and repeated attempts to use these procedures to obtain a resolution of views that do rtot satisfy the criteria for differing professional opinions.

K.

Special Review Panel for Follow-up on Functioning of Differing Professional Opinion Procedures Annually the Executive Director for Operations will appoint a Special t

Review Panel to evaluate and report on the functioning of these differing professional opinion procedures.

Four members of the Special Review l

Panel will be NRC employees (two managers and two nonmanagers), and the fifth men.ber will be chosen from outside the NRC. Two of the NRC-employee members will be selected from a list of at least five (5) candidates nominated by the National Treasury Employees Unicn (NTEU).

Membership shall not be limited to scientific or engineering personnel, t

All NRC employees will receive a copy of the letter appointing members of m

the Special Review Panel. The forwarding memorandum may also solicit employee comments on these procedures to be considered by the Special Review Panel.

Employee recommendations for membership of subsequent i

Special Review Panels will also be solicited.

The Special Review Panel will study NRC's experience in handling differing professional opinions, evaluate the functioning of these differing professional opinion procedures by assessing the degree to which the m'

. objectives are accomplished, and make appropriate recommendations for change. The Special Review Panel may recommend decreasing the frequency of these reviews when evaluations indicate that the NRC procedures for l

differing professional opinions are functioning effectively.

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The findings and recommendations of the Special Review Panel will be distributed simultaneously to the Commission, EDO, NRC employees and the public when the panel's deliberations are complete and before any revisions to the.DP0 Manual Chapter are initiated.

L.

Recognition of Originators of Significant Differing Professional Opinions In addition, the Special Review Panel described in Section K, above, will annually review all differing professional opinions submitted during the prior year to identify employees whose differing professional opinions I

made significant contributions to the agency or to public safety but who i

had not been recognized by his or her supervisor for this contribution.

It is anticipated that employees who provide significant contributions to the agency or to public health and safety will be recommended for appro-priate awards by their immediate supervisors. Where award recommendations have not been made, they may be made by this Panel in accordance with provisions of NRC's Incentive Awards Program (Chapter NRC-4154).

Copies of such recommendations for award will be included in the Special Review Panel's written report to the ED0 and the Commissioners.

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U.S. NUCLEAR REGULATORY COMMISSION NRO MANUAL

'l Volume: 4000 Personnel Part : 4100 Federal RM CHAPTER 4125 DIFFERING PROFESSIONAL OPINIONS 4125-01 COVERAGE This chapter and ' appendix comprise NRC policy, objectives, procedures, respon-sibilities and other basic requirements and definitions established to provide.

for the expression,and resolution of differing professional opinions concerning matters related to the agency's mission.

4125-02 POLICY AND OBJECTIVES 021 Policy.

It is the' policy of the Nuclear Regulatory Commission, and the responsibility or' all NRC supervisory and managerial personnel, to main-tain a working environment that encourages employees to make known their best professional judgments even though they may differ from a prevailing staff view, disagree with a management decision or policy position, or take issue with proposed or established agency practices.

Each differing profes-sional opinion of an'NRC employee will be evaluated on its own merit.

Fur-ther, each differing professional opinion will-be pursued to resolution and the employee's statement of differing professional opinion, together with the agen-cy's final response, will be made available to the public to ensure the open-ness of NRC decisions that may affect the public.

It is_ not only the right but the duty of all NRC employees to make known their best professional judgments on any matter relating to the mission of the agency. Moreover, both the general public and the Nuclear Regulatory Com-mission benefit when the agency seriously considers NRC employees' differing profess'ional opinions that concern matters related to the agency's mission.

Approved:

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NRC-4125-022 DIFFERING PROFESSIONAL OPINIONS This policy [ assures] is' intended to assure all employees the opportunity to express differing professional opinions in good faith, to have these opinions heard and considered by NRC management, and to be protected against retaliation in any form.

022 Objectives.-

To provide an effective and timely procedure for expressing and resolving differing professional opinions.

a.

Te -de fi ne-d i f fe r in g -p Pe fe s s ie Ra l-ep in ie n s.

b.

Te-distinguish-between-differing-prefessienal-epiniens-and-the-differ-enees-ef-views-and-epiniens-Peutinely-waised-and-Peselved 3meng-staff membePs-in-the-erdinary-eenduet-ef-ageney-business.

c.

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d.

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e.

Te-previde-reasenable-time-and-Peasenable-admiristrative-assistanee te-help-empleyees-develep-and-deeument-their-differing-pPefessienal epiniens.

f.

Te -p rev ide - fe r-a e k newledgme n t -e f-reee f p t -e f-s ta teme n t s -e f-d i f fe Ping prefessienal-epinien-and-fer-advising-eriginaters-ef-planned-aetiens fer-their-Feselutien.

g.

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4125-03 RESPONSIBILITIES AND AUTHORITIES 031 The Executive Director for Operations:

a.

assures that a written record is maintained to provide accountability for all subsequent a.ctions taken to resolve the differing professional opinions.

b.

ensures that differing professional opinions which are not resolved within four calendar months after their submission are resolved by the responsible office director as promptly as is practicable.

Approved:

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e NRC-4125-032 DIFFERING PROFESSIONAL OPIt' IONS c.

annually appoints a Special Review Panel to evaluate and report on the functioning of the differing professional opinion procedures.

032 Directors of Offices and Regional Administrators:

a.

determine actions to be taken on statements of differing professional opinion.

b, obtain a unique control number from RM to place on the original DP0 and all subsequent correspondance and documentation on that DPO.

c.

within 10 days of,its. submission, forward the differing professional opinion either to the appropriate manager within his or her own of-fice or to the director of the office with basic responsibility for the issues raised in the differing professional opinion with copies to the EDO and Director, Office of. Resource Management.

e d.

convene an impartial peer review group to address the substance of the issues raised either when requested by the originator or when he determines that the complexity of the issues raised justifies such a review.

e.

inform the Atomic Safety and Licensing Board Panel and the Atomic Safety and Licensing Appeal Panel of any differing professional opin-fon that relates to issues pending before them or scheduled for their consideration.

f.

assure that every effort is made to expedite the resolution of differ-ing professional opinions within the time frame specified in Appendix Section G.2.a..

g.

provide the originator with a copy of the peer aview group's report.

4 Approved:

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DIFFERING PROFESSIONAL OPINIONS NRC-4125-033 h.

inform E00 of Yeasons for delay and submit, for EDO approval, a pro-posed plan' for resolution of DP0's not resolved within four calendar months after submission, i.

provide the originator with written notification of the resolution of his differing professional opinion with a copy to the Director of Resource Management and EDO, and access to all documents generated in connection with its resolution.

j.

after the issue is resolved and the case closed, complete files on the DP0 will be maintained centrally by the cognizant office.

k.

provide the Office of [ Management-and-Pregram-Analysis] Resource Management with an annual Differing Professional-Opinion Status Report

[eash-ealendar-quarter].

(See Appendix 4125, Section G.4.)

033 The Director, Office of [ Management-and-Program-Analysis] Resource d

Management:

provide,s the Commission.with [qu'arterly] an annual report a.

specifying the actions / g. professional opinions submitt identifying all differin that,have been taken to achieve their resolution.

b.

assigns a unique control number to each DP0 at the time the offices initially provide documentation to RM on the origination of a specific DPO.

c.

maintains a file of all initial and final DP0's handled by NRC.

d.

advises the immediate supervisors of originators of DP0's of the requirements to maintain a written record to provide accountability for all subsequent actions taken to resolve the. differing professional opinions.

(See 4125-036 h.)

5 Approved:

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NRC-4125-036 DIFFERING PROFE5SIONAL OPINIONS e.

notifies the ED0 of any DP0's currently under review that are not anticipated to be resolved within-30 days after initial submission.

034 The Director, Office of Administration requires the Headquarters and Regional personnel offices to include an overview of the DP0 program in the orientation for new employees.

035 The Advisory Committee on Reactor Safeguards:

a.

appends comments to all [ written] referred statements of differing professional opini,on and forwards them for resolution to the appro-priate office director, if the differing professional opinion relates to a potential safety issue within their purview.

b.

responds to appeals by an originator if the differing professional opinion concerns matters of public health.or safety.

036 Immediate Supervisors:

a.

advise and assist employees in administrative 1y preparing adequate written statements of differing professional opinion and aid them in identifying related information.

b.

in consultation with their managers, determine the amount' of the originator's work time and administrative support to be [ nature-and level-ef-ressurees] provided in response to the originator's request for assistance.

c.

receive signed statements of differing professional opinion from the originator.

Approved:

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DIFFERING PROFESSIONAL OPINIONS NRC-4125-04 d.

within five woEking days of receipt acknowledge receipt of statements of differing professional opinion by memoranda to the originators. [with] A copy of the acknowledgment memo and the DP0 i

statement is forwarded to the EDO and the Director, Office of Resource Management.

e.

return to the originator any statement excluded from the definition of a differing professional opinion together with a memorandum cit-ing the specific exclusion with a copy to the EDO and Director, Office of Resource Management.

f.

forward statements of differing professional opinion, via their chain-of-command, to his or her office director for action with a copy to the ED0 and Direct'or, Office of Resource Management.

g.

assure staterrents of differing professional opinion are incorpo-rated into the receiving organization's normal work tracking system.

t h.

[assee-that] maintain a written record [is-maintained] to provide accountability for all subsequent actions taken to resolve the differing professional opinion while the DP0 is active.

i.

When the DP0 is completed or withdrawn, forwards the complete file to the Office Director's office, where it will be centrally maintained.

037 All Employees:

a.

make known their best professional Judgments on any matter relat-ing to the mission of the agency by submitting to their immediate supervisor a signed statement of differing professional opinion when appropriate.

Approved:

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9 NRC-4125-042 DIFFERING PROFESSIONAL OPINIONS b.

before submitting a statement of differing professional opinion, should consult with their immediate supervisor who will aid them in identifying related information and assist them, if requested, in clarifying the issues.

c.

may [appange-fer] request an Open Door meeting with any manager to discuss their views.

~

d.

may request that their differing professional opinion be presented to an impartial peer review group for review, evaluation, and comment.

may commu' icate a, differing professional opinion concerning a poten-n e.

tial safety issue directly to the chairman or any member of the ACRS.

f.

may appeal the resolution of their differing professional opinion to

[any] a_ higher level of NRC management.

4 4125-04 DEFINITIONS 041 Diffe ing_?rofessional Opinion. A conscientious expression of pro-fessional judgment as contained in a written, signed statement submitted to

[his] one's immediate supervisor, or subnission of an unsigned anonymous-statement (see~NRC Appendix 4125, Section H.1) which, on any matter relating to NRC's mission or organizational activities, differs from the prevailing staff view within an organization, disagrees with.a management decision or policy position, or takes issue with a proposed or an established agency practice. Differing professional opinions may involve technical, management, legal, or policy issues and are not limited to.the originator's area of expertise. Matters that are subject to employee grievance in accordance with Chapter NRC-4157 and matters covered by the negotiated grievance procedure do not qualify as differing. professional opinions.

-Approved:

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DIFFERING PROFESSIONAL OPINIONS NRC-4125-04 042 Manager. An employee who directs the work of an organization, is held accountable for spebific line or staff programs or activities, and whose primary duties are managerial.

043 Peer Group. A group of NRC staff with expertise in the area covered by a given DPO, convened for the purpose of addressing the substance of the issues raised by the DPO.

4125-05 BASIC REQUIREMENTS

'051 Applicability.

These procedures for the expression and resolution of differing professional opinions are for the use of all NRC employees includ-ing supervisors and managers.

The procedures supplement other-stated rights, duties, and safeguards applicable to all Federal employees ~who make

~

their views known either within or outside their agencies, including:

a.-

the independent right of free speech provided by the First Amend-ment to the U.S. Constitution.

b.

the right of government employees to ~ petition the Congress (5 USC 7102).

c.

the rights of employees to commun>cate directly with the Congress as outlined in the Code of Ethics for Government Service (10 CFR 0.735 - Annex A).

d.

provisions of the 1978 Civil Service Refonn Act dealing with pro-hibited personnel practices and the regulations of the Merit System Protection Board.

052 Appendix 4125. This appendix provides procedures for the expres-sfon and resolution of differing professional opinions.

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l DIFFERING PROFESSIONAL OPINIONS NRC Appendix 4125

'3 CONTENTS Page s

lA.

Normal Differing Views vs. Differing Professional Opinions.........

1 8.

' Primary Channel for Expressing Differing Professional Opinions....

2 C.

Content of a Written Statement of Differing Professional Opinion...

2 D.

Resources to Assist Originators of Differing Professional Opinions..

3 E.

Acknowledgment of Differing Professional 0 pinions..................

4 F.

Written Record of Actions on Differing Professional Opinions.......

5 G.

Resolution of Differing Professional 0 pinions......................

5

1. De fi n i t i on o f Re s o l u t i o n.......................................

5

2. Resolution Process.............................................

6

3. Appeal.........................................................

10

4. Reports to the Commission......................................

10 H.

Alternate Channels for Expressing Differing Professional...........

3 0 pinions..........................................................,

11

1. Open Doo r Po l i cy................................................

12

2. The ACRS....i...................................................

14 I!.

I.

Prevention of Retaliation Against Individuals who Express or Support Differing Professional 0 pinions............................

14

-J.

Prevent Intentional Misuse-of Procedures for Differing Pro fe s s i o na l 0p i n i o n s.............................................

15 K.

Special Review Panel for Follow-up on Functioning of Differing Profes sional Opinion Procedu res...................................

15

'L.

Recognition of Originators of Significant Differing Professional 0 pinions..........................................................

17 i

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DIFFERING PROFESSIONAL OPINIONS NRC Appendix 4125 PROCEDUdESFORTHEEXPRESSIONANDRESOLUTION OF DIFFERING PROFESSIONAL OPINIONS A.

Normal Differing Views vs. Differing Professional Opinions A normal differing view, developed in the free and open discussion of work matters, becomes a differing professional opinion only when the originator brings it to NRC management attention in accordance with these procedures.

In the free and open discussion of work matters _, professional differences of opinion are common.

Employees may also develop critical views con-cerning matters other than their personal work assignments, such as is-sues under consideration in another part of NRC or relating to an agen'-

cy practice or position that is neither currently under review nor in the agency's decisionmaking process.

In both these instances employees normally try, and should be encour-aged,-to resolve their concerns through discussions with their co-r workers and immediate supervisors.

In some cases,'such discussions may lead to the submission of a suggestion as part of the NRC sug-gestion program (Chapter NRC-4154).

Howeter, these informal discussions-may not resolve the matter and an empiciyee may be convinced that the agency and the public would be bet--

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t'cr served if another opinion prevailed.

To further pursue such con-cerns using these procedures, an employee should submit a written statement of differing profession 61 opinion in accordance with these procedures.

With the submission of this statement, the employee's dif-fering view becomes a differing professional opinion.

An employee may not use these procedures for differing professional opinions without submitting a written statement. The employee may, how-ever, express any concerns orally or in writing to the ACRS and may 1

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NRC Appendix 4125 DIFFERIhG PROFESSIONAL OPINIONS also discuss these doncerns with any NRC manager as provided in the Open Door Policy (See.Section H).

B.

Primary Channel for Expressing Differing Professional Opinions These procedures are invoked when employees submit to their immediate supervisor a written statement of differing professional opinion. As indicated in the statement of policy, it is not only the right but the duty of all NRC employees to make known their best professional. judgments-on any matter relating to the mission of the agency.

Before submitting the statement, employees should consult with their im-mediate supervisor who will aid them in identifying related information and assist them, if req'ested, in clarifying the issues. Originators of u

differing professional opinions may request agency resources for prepar-ing adequate written statements of differing professional opinion and such requests shall include estimates of the resources required.

C.

Content of a Written Statement of Differing Professional Opinion Rega rdle s s-e f-i ts-fe rma t-e r-s tyle,-a -wri t t en-s ta temen t-e f-di f fe Ping-p re fe s s iena l-ep in ien -s h ew id-be-a s -b Fie f-a s -pe s s i b le r (It-is-stFengly Peeemmended-that-the-statement-ineludet]

A written statement of differing professional opinion, while being brief, should in all cases include the following:

1.

a summary of the originator's perception of the prevailing staff view, existing management decision or stated position, or the pro-posed or established agency practice.

2.

a description of the originator's opinions and how they differ from any items discussed in 1. above.

l

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DIFFERING PROFESSIONAL OPINIONS NRC Appendix 4I25 3.

a statement of'the originator's assessment of the resulting conse-quences if the differing professional cpinion is not adopted by the agency.

4.

the-status-ef-related-efferts-with-whieh-the-eriginater-4s-familiar and-their-petential-eentribution-teward-reselut4en-ef-the o rig in a te rls-di f fe ring -p re fe s s iena l-ep in ie n.

D.

Resources to Assist Originators of Differing Professional Opinions To assist originators in preparing adequate wrf'tten statements of differ-ing professional opinion, NRC management will allow a reasonable amount of Efi)3 the originator's work time-Ef 2)-time-ef-ether-NR$-prefessienal persenel-in-a-sensultin'g-eapaeity,3-and-EfB)3 administrative support.

If called to testify before a Licensing Board or an Appeal Board, the employee may receive, upon request, assistance from the staff legal office in preparing testimony or other documents to be filed with the

, Board. Such assistance will be solely for the purpose of facilitating the filing of the necessary documents and will not constitute legal representation of the employee by the legal staff. At the hearing, the employee may be questioned by the staff attorney. participating in the proceeding whenever such examination is deemed necessary. The

~

originator's immediate supervisor, in consultation with his or her manager, will determine the Enature-and-level-ef-ressurees3 amount of the originator's work time and administrative support to be provided in response to the originator's request for assistance.

The-purpese-ef-this-assistanee-is-te-ensure-that-the-pertinent-4ssues-are elearly-and-aeeurately-presented,-that-related-matters-are-eensidered; a nd-t ha t -re levan t-dee umen ta t ien -is-inelu ded,--in -de t e rmin in g-t he-level-e f reseurees_te-be-made-available-te-the-empleyee,-eensideratten-will-be g ive n-te-fi)- t he-pe t e n t ia l-s ig n i ff ea nee-e f-t he-p repe sed-di f fe ri ng p ro fe s s iena l-epi nie n -a nd-(2)- the-v ege ney-e f-res e lv i ng -t he -d i ffe r ing p ro fes s f ena l-ep in ien-in -e empa risen -wi t h-t ha t-e f-e t he r-m i s s ie n-re la ted aetivities.

3

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NRC Appendix 4125 DIFFERING PROFESSIONAL OPINIONS As-en-alternative,-depleyees-may-prepare-a-statement-ef-differing-pre-fessienal-epinien-en-their-ewn-44me-and-in-that-statement-deseribe-what

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werk,-ineluding-prepesed-eemmitments-ef-their-ewn-time,-wsuid-be needed-te-reselve-the-eeneerns-er-4ssuest E.

Acknowledgment of Differing Professional Opinions The immediate supervisor shall, upon receiving a written statement of differing professional opinion, discuss the statement with the originator if this has not previously teen done.

In addition, the immediate supervisor must, within five working days, acknowledge receipt by a memorandum to the originator with a copy to the EDO and a copy to the Director, Office of Resource Management.

This memorandum will also indicate the actions th't will be taken to resolve the differing pro-a fessional opinion.

Upon receipt, statements of differing professional opinion will be incor-porated into the receiving organization's normal work tracking system.

This tracking should assure that the status of each differing professional opinion is regularly reviewed, aid in its prompt resolution, and provide a systematic basis for keeping the originator informed.

If-the-4mmediate-super /4ser-determines-that-the-Written-statement-deals-wi t h -ma t te rs -ex e lude d-f rem-t h e-de fin i t ie n-e f-a -di f fe r ing-p re fe s s f ena l epinien,-he-shall-nete-this-in-his-aeknewledgement-meserandumy-eiting the-spesiffe-exelusieny-and-return-the-statement-te-the-empleyeer--The-memerandem-will-indfeate-that-ne-further-aetien-will-be-taken-using-these p re eedu res-fe r-di f fe r ing -p re fe s s f ena l-ep i n ien s -a n d-Will-i n fe rm-t he-emp l eyee-e f-t he -a pp rep ria te-p re e edu res-fe r-dea li n g -Wi t h-h is -e e ne e rn s An-empleyee-may-appeal-an-immediate-s9perviser-s-deefsten-that-his statement-deals-with-matters-that-may-net-be-reselved-using-these-pre-eedures-fer-differing-prefessienal-epiniensr--This-appeal-weuld-nermally be-submitted-te-ef ther-an-9ffiee-94reeter-er-te-the-Exeeutive-94reeter fer-9peratiens - The-appeal-may,-hewever,-be-submitted-te-any-level-ef NRG-management.

4

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DIFFERING PROFESSIONAL OPINIONS NRC Appendix 4125 F.

Written Record of Adtions on Differing Professional Opinions Once a differing professional opinion has been submitted, a written record must be maintained by the immediate supervisor while the DP0 is active to provide accountability for all subsequent actions taken to resolve that differing professional opinion on its merits.

T.'iis record will consist of signed notations of all supervisory and managerial determinations and actions based upon the differing professional opinion.

Changes in the original documentation that are requested by the originator will also be made a part of this written record.

Copies of the initial and the final DP0 documents will' be sent to the Director, Office of Resource Management and EJ0.

All pertinent documentation will be retained by the supervisor while the DP0 is active and c'entrally by the Office Director for-a Eminimum3 period of 10 years after the DP0 becomes inactive.

G.

Resolution of Differing Professional Opinions 4

1.

Definition of Resolution 3

A differing professional opinion is considered resolved by the NRC when:

j a.

NRC management adopts the views expressed in the originator's written statement of differing professional opinion; or b.

NRC management adopts a part of the judgments expressed in-the originator's written statement of differing professional opinion and informs the originator of the reasons for not adopting the remainder; or c.

The responsible office director determines that evaluation of the differing professional opinion fails to justify modification of a management decision, policy position, or a proposed or an existing agency practice; or-5

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The respc'nsible office director determines. that the impact of the potential consequences stated in the differing professional opinion is insufficient to justify a detailed evaluation of the -

differing professional opinion; or e.

The differing professional opinion is withdrawn by the originator.1 In each of the preceding cases, the resolution process is complete oniy when the originator has been informed!of the decision or action of NRC management and, consistent with security classification policy, both the statement of differing professional opinion and the response of NRC management have been placed in NRC's Public Document-Room.

2.

Resolution Process i

a.

Summary and schedule of resolution process:

Originator submits DP0 to immediate supervisor; (Within five working days of receipt) immediate supervisor forwards DP0 to Office Director with comments of all others in chain-of-command appended; (Within 10 working days of submission) Office Director forwards DP0 t'o appropriate manager for action [If transferred to another office, DP0 must be assigned to responsible program manager within 15 working days after submission by originator.];

IIn such cases, NRC management may elect to pursue the matter.further based on its merit even though it is no longer considered to be a differing professional opinion.

6

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i DIFFERING PROFESSIONAL OPINIONS NRC Apoendix 4125 (Within 15 days after submission) Office Director informs ASLBP and ASLAP"of any DP0 that relates to issues pending before them or scheduled for 'their consideration; (Within 30 working days after assignment to responsible manager)

DP0 normally resolved; (Four calendar months after submission) If DP0 not resolved, responsible Office Director informs EDO of reasons for delay and submits, for ED0 approval, a proposed plan and schedule for completing resolution.

b.

When submitting a differing professional opinion, the originator may request that it be presented to an impartial peer review group for rev'iew, evaluation, and comment.

If such request is not made by the originator, and if ~the responsible office director determines that such review is justified by the com-plexity or the potential significance of the issues raised, he shall convene an impartial peer review group to address the substance of the issues raised in the differing professional opinion.

In either case, the responsible office director will assure that members of the peer review groups convened for this purpose are specifically selected for their impartiality and professional competence concerning matters discussed in each differing professional opinion.

The responsible office director will carefully consider peer review group recommendations in

.the resolution of applicable differing-professional opinions and will provide the originator with a copy of the peer review group's report.

c.

Upon receiving a statement of differing professional opinion from the originator, the immediate supervisor will forward it, via the chain-of-command, to his or her office director for action with copies to EDO and Office of Resource Management.

7

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%~.m..#.s...m s NRC Appendix 4125 DIFFERING PROFESSIONAL OPINIONS The imedf ate-supervisor and all others in the chain-of-comand shall append their views concerning matters discussed in the differing professional opinion.

The differing professional opinion, with coments appended, shall be provided to the office director within five working days after its submission by the originator.. Copies of these coments, together with -all other documents generated in response to the differing professional opinion, shall be made available to the originator as they are generated. At his option, the~ originator may submit written coments for the record concerning views expressed by his immediate supervisor or others in the chain-of-command, or views expressed by intermediate NRC management personnel in the course of resolution of the differing professional opinion.

d.

The office' director will obtain a unique DP0 control number and will forward the differing professional opinion, within 10 working days of its submission by the originator, either to the appropriate manager within his or her own office or to the director of the office that has basic responsibility for the issues raised in the differing professional opinion with copies to the ED0 and Director of Resource Management. If transferred to another. office for resolution, the differing professional opinion must be assigned to the responsible program manager within 15 working days after its submission by the originator. The responsible manager will incorporate the statement of differing professional opinion into the organization's normal work tracking' system and, until the differing professional opinion has been resolved, shall provide the originator with brief monthly status reports. Copies of these reports shall also be provided to the. responsible office director. The l

responsible manager will also inform the originator of other l

differing professional opinions received that are relevant to that submitted by the originator.

i e.

The responsible office director will, within 15 working days after its submission by an originator, inform the Atomic Safety 8

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f.

Every effort shall be made to expedite the resolution of differ-ing professional opinions.

Nonnally, a differing professional opinion should be resolved by the responsible. office director within 30 working days after its assignment, to the responsible manager. -An extension of 15 working. days will, however, be automatically granted upon certif

".- hv the responsible man-ager to the originator that:

(1; c:w..

of-the differing-professional, opinion involvesiespecially c.

Aex issues, (2) the-workload of managerial personnel involved in.

solution of the -

issues is temporarily heavier than normal, or (3) that resolu-tion of the differing professional opinion involves the partici-pation of several ~ levels of NRC management. Additional exten-2 sions of 15 working days'each may be granted only upon appli-cation to and approval by the responsible office director who

~

will consider comments of both the managerial personnel in-volved and the originator with regard to the proposed extension.

2 l

g.

If a differing professional opinion is not resolved within four i

calendar months after its submission, the responsible office director shall.. inform the Executive Director for Operations I

(EDO) of the reasons for the delay and shall submit, for EDO approval, a proposed plan and schedule for completing its reso-lution.

The responsible office' director shall provide'the orig-inator with a copy of the EDO-approved plan and schedule for resolution.

The EDO will ensure that differing professional opinions in this category are resolved by the ' responsible office director as promptly as is practicable.

9 4

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NRC Appendix 4125 DIFFERING PROFESSIONAL OPINIONS h.

The responsible office director shall provide the originator with writien notification of the resolution of his differing professional opinion with a copy to the Director, Office of

- Resource Management (see Section 4125-03 and EDO, and access to all documents generated in connection with its resolution. While DP0 is active, the imediate supervisor will maintain the file.

When the DP0 is complete or inactive, the Office Director will centrally maintain the file.

3.

Appeal The originator may appeal the resolution of his differing profes-sfonal opinion to a higher level of NRC management including a

. Commissioner or the Comission.

Normally, it would be expected that appeals by individuals assigned to Program Offices or to EDO Staff Offices would be submitted to the ED0 and that individuals assigned to the Comissicn or to Comission Staff Offices would submit appeals either to a Comissioner or to-the Commission. Moreover, if a e

' differing professional opinion concerns matters of public health or safety, the appeal may be forwarded through the ACRS with a request that the ACRS coment on the potential safety implications of the resolution that is being appealed.

These procedures make no provision for further appeal of the reso-lution by NRC management of a differing profession'al opinion. How-ever, originators who are dissatisfied with either NRC management's resolution of their differing professional opinion or the results of their appeal of this resolution may further pursue ~ their concerns via the Open Door policy or the ACRS as appropriate.

4.

Reports to the Comission The Office of [ Management-and-Pregram-Analysis] Resource Management (RM) shall provide the Comission with annual reports identifying all differing professional opinions submitted and specifying the actions that have been taken to achieve their resolution.

This information 10

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DIFFERING PROFELJIONAL OPINIONS NRC Appendix 4125 shall be provi$ed by the responsible office directors who shall,-

within five working days after each calendar year, provide [MPA] fpi with a Differing Professional Opinion Status Report that contains:

a.

A listing and a description of all differing professional opinions received together with a brief status report of all efforts that have been taken to achieve their resolution.

Items.shall be reported and summarized in-the following three categories:

(1) Differing professional opinions _ submitted since the last

[quaF%eFly] status report.

(2) Differing professional opinions previously received and reported' but not yet resolved.

(3) Differing professional opinions previously received and reported that were resolved on t_he following dates.

2 b.

Information obtained from the originator of each differing pro-fessional opinion resolved during the year which indicates the originator's general reactions to these procedures. As a mini-mum, this information should include the originator's evaluation

~

of the utility of these procedures for handling his or her dif-fering professional opinion, areas in which these procedures inhibited rather than aided the achievement of their objectives, and comments or recommendations for improvement of these procedures.

H.

Alternate Channels for Expressing Differing Professional Opinions Two alternate channels are available for employees who prefer not to use the primary channel for expressing their differing professional opinions.

Once a differing professional opinion submitted via either of these.two channels has been forwarded to the responsible office director,-subse-quent procedural steps involved in resolution of the differing professional 11

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NRC Appendix 4125 DIFFERING PROFESSIONAL OPINIONS opinionareessenti$11yidenticalwiththoseprescribedfortheprimary channel. -The basic difference between the primary channel and the two alternatives discussed below is that the alternatives permit the originator to select the individual manag r to whom the differing professional opinion will be submitted and, in addition, they make provision for the submission of anonymous differing professional opinions upon request.

1.

Open Door Policy The Open Door Policy of NRC provides that_NRC employees may, on their own initiative, meet with any manager, including a Commissioner or the Chairman of NRC, to discuss any matter of concern to the employee.

Employees may [aFFaRge-feF) request an Open Door meeting directly with the selected manager's secretary or administrative assistant and there is no requiremsnt for the approval of requests for such meetings by intermediate management.

An employee's request for anonymity will be honored by any manager-contacted via the Open Door except in two special situations that could occur if the manager contacted is an NRC Commissioner.

Each Comissioner is legally required to inform all other Commissioners of any information which he believes to be related to the responsibility or the function of the Comission. (This requirement for mandatory information sharing applies only to the Comissioners and does not extend to others within NRC.) Subject to this constraint, NRC Comissioners will honor an employee's request for anonymity made in a

connection with connunications via the Open Door. Therefore, when an employee requests anonymity in an Open Door contact with a Comissioner, no Comissioner will disclose to another Comissioner the identity of the employee unless (a) as a practical matter it is impossible to convey the substance of the information without making known the identity of the employee, (b) disclosure of the employee's identity to the other Commissioners is essential for determination of the accuracy and reliability of the information, or (c) the employee's identity is required to be released by law.

12

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DIFFERING PROFESSIONAL OPINIONS NRC Appendix 4125 If Open Door discussions disclose that an employee's views constitute a differing. professional opinion, the contacted manager should

[eneevrage] advise the employee to submit a signed, written statement of differing professional opinion in accordance with these procedures and should inform the employee's management that he has been advised to prepare such a statement. If the employee insists on remaining anonymous but wishes to have his or her views considered as a differing professional opinion, the employee [must] should submit an unsigned statement of differing professional opinion to tic manager contacted via the Open Door and that manager will forward the anonymous statement of differing professional ' opinion to the office director having programmatic responsibility for the issues raised in

~

the differing professional opinion.. Resolution of the differing professional opinion will then be completed in accordance with these procedures.

To protect the employee's anonymity in such cases, however, it may not be possible to provide the acknowledgment of receipt of the differing professional opinion or the reports on s

resolution directly to the originator of the. differing professional opinion.

In such cases, the manager originally contacted via the Open Door shall relay to the originator both the acknowledgment of receipt and all reports received by that manager conctrning resolution of the differing professional opinion.

Differing opinions not expressed in writing as required by Section C shall be considered to be normal differing views as discussed in Section B, and may not be pursued further using the procedures for differing professional opinions.

Open Door discussions between employees and managers may also relate to subjects other than normal differing views and differing professional opinions.

In these cases, the managers contacted will work to resolve an employee's concerns, to answer any questions, and to honor any request for anonymity.

Honoring a request for 13

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NRC Appendix 4125 DIFFERING PROFESSIONAL OPINIONS anonymity may,' however. 'imit a manager's assistance either to dis-cussions with the amployee or to providing advice and counsel on matters of. concern to the employee.

n Managers should advise employees of the proper channels to be.used for the resolution of concerns that may not be' resolved using these procedures for differing professional opinions.

If the contacted manager believes that others should be notified of issues raisefin these Open Door discussions, he should notify offices with program-matic responsibility, and others (e.g., the Office of Inspector and Auditor).

2.

The ACRS If the differing professional opinion relates to a potential safety issue within the purview of the Advisory Committee on Reactor Safe-guards, an NRC employee may communicate orally or in writing directly I

with the Chairman or any member of the ACRS.

Such communication may be anonymous. The ACRS will append comments, as appropriate, to.all WFi%%eR referred statements of differing professional opinion and will forward these statements for resolution to the appropriate NRC office director.-

An NRC employee may also appear before the ACRS or an ACRS Subcommittee as deemed appropriate by the Committee.

The ACRS will assure that all such statements that do not constitute a differing professional opinion are forwarded to the appropriate NRC office director for information.

I.

Prevention of Retaliation Against Individuals Who Express or Support Differing Professional Opinions Any NRC employee who retaliates against another employee for submitting or supporting a differing professional opinion is subject to disciplinary action in accordance with Chapter NRC-4171 (Separations and Adverse 14

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..y DIFFERING PROFESSIONAL OPINIONS NRC-Appendix 4125 Actions). This aplilies to retaliatory actions described in the following paragraph and to.all prohibited personnel practices specified in

-Section 2302, Title 5, U.S. Code, as amended by the Civil Service Reform

' Act of 1978. -

Retaliation' consists of injurious actions taken against the originator of a differing professional opinion in which a motivating' factor for such actions derived from the submission of a differing professional-opinion by the originator.

Retaliation'may involve transfer; detail; ostracism; loss of staff assistance, space, or equipment; physical isolation; the absence of assignments involving substantive work; or the denial of promotion, attendance at professional society meetings, or justified training.

Employees who allege th'at-retaliatc:y actions have been taken because of their submission or support of a differing professional opinion may seek redress through ' he riegetiated grievance procedure or through the t

grievance procedure described in Chapter NRC-4157 (Employee Grievances).

This is the formal route.

Employees may also use the "Open Door" Policy

(

as described in Section Hl.

~

J.

Prevent Intentional Misuse of Procedures for Differing Professional Opinions No NRC employee should intentionally misuse these procedures.

Examples of intentional misuse would include but not be limited to frivolos use,

. attempts to treat a personnel-grievance type action as'.a difrering profes-sfonal opinion, and repeated attempts to use these procedures to obtain a resolution of views that do not satisfy the criteria for differing professional opinions.

i K.

Special Review Panel for Follow-up on Functioning of Differing Professional Opinion-Procedures.

1 Af te r-these-preeedu re s -have-bee n-in-e f fee t -fe r-ene-yea r y-the-Execu t (ve 94 ree te r-fer-9pe ra t ien s-s ha ll-appe in t-a n -ini t ia l-Spee f : 14ev iew-Pa ne l-te

= review-the-first-yearis-histery-ef-epera tios-e f-the-preeedures-and-te I

15

me NRC Appendix 4125 DIFFERING PROFESSIONAL OPINIONS reeemmend-medifieatiens-where-nesessaryr--This-first-year-Panel-will-be f

esmpesed-ef-twe.representatit 1s-ef-NRG-mana5ementy-twe-representatives ~

de s ig na ted-by-t he-Na t io na l-Trea s u ry-Emp loyee s -Un ie n -f NTEU),-a nd-t he Ghairman-whe-shall-be-ehesen-frem-eutside-the-ageneyr Annually [thereafter] the Executive Director for Operations will appoint a Special Review Panel to evaluate and report on the functioning o' these differing professional opinion procedures.

Four members of the Special Review Panel will be NRC employees (two managers and two nonmanagers),

and the fifth member will be chosen from outside the NRC.

Two of the NRC-employee members wf11 be selected from a ifst of at least five (5) candidates nominated by the National Treasury Employees Union (NTEU).

Membership shall not be limited to scientific or engineering personnel.

All NRC enployees will receive a copy of the letter appointing members of the Special Review Panel. The forwarding memorandum may also solicit ecployee comments on these procedures te be considered by the Special Review Panel.

Employee recommendations for membership of subsequent Special Review Panels will also be solicited.

c The Special Review Panel will study NRC's experience in handling differing professional opinions, evaluate the functioning of these differing professional opinion procedures by assessing the degree to which the objectives are accomplished, and make appropriate recommendations for chan'ge. The Special Review Panel may recommend decreasing the frequency of these reviews when evaluations indicate that the NRC procedures for differing professional opinions are functioning effectively.

The findings and recommendations of the Special Review Panel will be reperted-te-the-E991-the-Gemmissieners,-and-te-all-NRG-empleyees-and the-repert-will-be-made-publie. distributed simultaneously to the Commission, EDO, NRC employees and the public when the panel's deliberations are complete and before any revisions to the DP0 Manual Chapter are initiated.

16

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.,v' OIFFERING PROFESSIONAL OPINIONS NRC' Appendix 4125 L.

Recognition of Orig'inators of Significant Differing Professional Opinions i

In addition, the Special Review Panel described in Section X, above, will annually review all differing professional opinions submitted during the prior year to identify employees whose differing professional opinions made significant contributions to the agency or to public safety but who had not been recognized by his or her supervisor for this contribution.

It is anticipated that employees who provide significant contributions to the agency or to' public health and safety will be recomended for appro-priate awards by their imediate supervisors.

Where award recomendations have'not been made, they may be made by this Pa'nel in accordance with provisions of NRC's Incentive Awards Program (Chapter NRC-4154).

Copies of such recomendations for award will be included in the Special Review Panel's written report 'to the E00 and the Comissioners.

i f

I 17

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0, UNITED STATES t

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NUCLEAR REGULATORY COMMISslON

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[,.j WASHINGTON. D. C. 20555

/

/' r.AR 2 61985 MEMORANDUM FOR:

Samuel J. Chilk Secretary of the Comission FROM:

Thomas A. Rehm, Assistant for Operations Office of the Executive Director for Operations

SUBJECT:

SECY 85-77: DIFFERING PROFESSIONAL OPINIONS The attached change to SECY 85-77 comprises a commitment to 0IA which we neglected to include in the original writeup.

Please make the necessary distribution to correct the existing copy.

Thomas A.

Assistant for Operations 3

Office of the Executive Director for Operations

Attachment:

As stated

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Insert to follow paragraph 2 on page 10 of Attachment 1, NRC Appendix 4125 of SECY 85-77.

Same paragraph would be und' rlined and inserted to follow the second full e

paragraph on page 15 of Attachment 2, line-in/line-out NRC Appendix 4125 of SECY 85-77.

"In a case where an employee files a grievance alleging that (s)he has been retaliated against for having filed a DPO, the grievance may be reviewed initially by the same managers (usually lower level management) who allegedly have engaged in retaliation. However, the agency grievance procedures provide for review of the allegation by higher level management.

In addition, grievants under agency practice and procedures have the right to present the issue to an independent third party from outside the NRC; grievants covered by the negotiated Union Agreement may, with the concurrence of the Union, proceed to binding arbitration before a third party arbitrator from outside the NRC."

e e