80 FR 11693 - Scope Expansion of the Post-Investigation Alternative Dispute Resolution Program

NUCLEAR REGULATORY COMMISSION

Federal Register Volume 80, Issue 42 (March 4, 2015)

The U.S. Nuclear Regulatory Commission (NRC) is issuing a revision to its Enforcement Policy (Enforcement Policy or Policy) to incorporate Commission direction to add escalated non-willful (traditional) enforcement cases with the potential for civil penalties within the scope of the Commission's Alternative Dispute Resolution Program and to make other conforming edits.

[Federal Register Volume 80, Number 42 (Wednesday, March 4, 2015)]
[Notices]
[Pages 11693-11695]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-04490]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

[NRC-2013-0046]


Scope Expansion of the Post-Investigation Alternative Dispute 
Resolution Program

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy revision; issuance.

-----------------------------------------------------------------------

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing a 
revision to its Enforcement Policy (Enforcement Policy or Policy) to 
incorporate Commission direction to add escalated non-willful 
(traditional) enforcement cases with the potential for civil penalties 
within the scope of the Commission's Alternative Dispute Resolution 
Program and to make other conforming edits.

DATES: This revision to the Enforcement Policy is effective March 4, 
2015.

ADDRESSES: Please refer to Docket ID NRC-2013-0046 when contacting the 
NRC about the availability of information for this action. You may 
obtain publicly-available information related to this action by any of 
the following methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2013-0046. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions, contact 
the individuals listed in the FOR FURTHER INFORMATION CONTACT section 
of this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and 
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS, 
please contact the NRC's Public Document Room (PDR) reference staff at 
1-800-397-4209, 301-415-4737, or by email to [email protected]. The 
ADAMS accession number for each document referenced (if it is available 
in ADAMS) is provided the first time that it is mentioned in the 
SUPPLEMENTARY INFORMATION section.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Daniel Lenehan, telephone: 301-415-
3501, email: [email protected], or Shahram Ghasemian, telephone: 
301-415-3591, email: [email protected]; both of the Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001.

SUPPLEMENTARY INFORMATION:

Background

    The Administrative Dispute Resolution Act of 1996 authorizes and 
encourages the use of Alternative Dispute Resolution (ADR) procedures 
by Federal agencies. The term ``ADR'' refers to a number of voluntary 
processes, such as mediation and facilitated dialogues that can be used 
to assist parties in resolving disputes and potential conflicts. These 
techniques involve the use of a neutral third party, either from within 
the agency or from outside the agency, and are voluntary processes in 
terms of the decision to participate and the content of the final 
agreement. The NRC's experience with ADR has demonstrated that the use 
of these techniques can result in more efficient resolution of issues, 
more effective outcomes, and improved relationships between the agency 
and other parties. The NRC established the ADR Program in its Office of 
Enforcement in 2004.
    Since the implementation of the ADR Program, the NRC has reached 
settlement agreements with licensees (or contractors) and individuals, 
and has issued subsequent ADR confirmatory orders in more than 90 
enforcement cases. The parties to ADR in the NRC's enforcement program 
are the NRC staff and, in most cases, a licensee. The proceedings are 
conducted using the facilitation skills of a trained independent 
mediator. Mediation allows the NRC staff and the licensee to 
communicate openly and directly and enables the parties to reach 
effective and workable agreements that meet the NRC's regulatory 
interests. Historically,

[[Page 11694]]

the ADR Program has resulted in broader and more comprehensive 
corrective actions than would be expected using traditional enforcement 
means.
    On December 16, 2010, then NRC Chairman, Gregory Jaczko, issued a 
memorandum, ``ADR Implementation and Assessment'' (ADAMS Accession No. 
ML12030A228) tasking the NRC staff to conduct a comprehensive review of 
the ADR Program, including determining if it should be expanded. At the 
time the ADR Program was limited to cases involving discrimination and 
other wrong doing. On September 6, 2011, the NRC issued a notice in the 
Federal Register that solicited nominations of individuals to 
participate on a panel to discuss ADR Program implementation and 
whether changes could be made to make it more effective, transparent, 
and efficient (76 FR 55136). On October 17, 2011, the NRC issued 
another Federal Register notice that announced its intention to hold a 
public meeting to solicit feedback from its stakeholders on the ADR 
Program (76 FR 64124). During the public meeting, which was held on 
November 8, 2011, external NRC stakeholders expressed support for the 
expansion of the ADR Program to the extent possible.
    In Commission Paper SECY-12-0161, ``Status Update, Tasks Related to 
Alternative Dispute Resolution in the Allegation and Enforcement 
Programs,'' dated November 28, 2012 (ADAMS Accession No. ML12321A145), 
the NRC staff notified the Commission of its intent to pilot the 
expansion of the ADR Program to include escalated non-willful 
(traditional) enforcement cases with proposed civil penalties for a 1-
year period. The expansion of the program did not include violations 
associated with findings assessed through the Reactor Oversight 
Process.
    During the pilot period, the NRC staff made ADR available for seven 
escalated non-willful (traditional) enforcement cases with proposed 
civil penalties however, none of the licensees chose ADR. The licensees 
included a waste disposal facility, two radiographers, a gauge user, 
two hospitals, and one non-operating (decommissioned) reactor. However, 
shortly after the 1-year period, a power reactor licensee chose to 
engage in ADR for an escalated non-willful (traditional) enforcement 
case with the potential for a civil penalty. The subsequent mediation 
resulted in a settlement, specified in the Confirmatory Order, under 
which the licensee agreed to fleet-wide actions as opposed to plant-
specific actions that would have typically been expected from using the 
traditional enforcement process.
    In Commission Paper SECY-14-0077, ``Status Update and Proposed 
Policy Revision: Tasks Related to Alternative Dispute Resolution in the 
Enforcement Program,'' dated July 30, 2014 (ADAMS Accession No. 
ML14143A363), the NRC staff recommended that the Commission approve 
expanding the scope of the ADR Program to include non-willful 
(traditional) enforcement cases with the potential for civil penalties 
(not including violations associated with findings assessed through the 
Reactor Oversight Process).
    In the Staff Requirements Memorandum to SECY-14-007, the Commission 
approved the expansion of the ADR Program. Accordingly, the NRC is 
revising Section 2.4.3, ``Alternate Dispute Resolution,'' of the 
Enforcement Policy to add escalated non-willful (traditional) 
enforcement cases with the potential for civil penalties within the 
scope of the program and to make other conforming edits.

Revisions to Enforcement Policy

    The text of revised section 2.4.3, in its entirety, follows. A 
marked copy of the Enforcement Policy is available in ADAMS under 
Accession No. ML15028A422.

2.4.3 Alternative Dispute Resolution

    The Administrative Dispute Resolution Act of 1996 (ADRA) authorizes 
and encourages the use of Alternative Dispute Resolution (ADR) 
procedures by Federal agencies. ADR refers to a variety of processes 
that emphasize creative, cooperative approaches to handling conflicts 
in lieu of adversarial procedures. Mediation is the form of ADR 
typically used by the U.S. Nuclear Regulatory Commission (NRC). The use 
of ADR in the NRC's enforcement program is available for cases 
involving discrimination and other wrongdoing as well as escalated 
nonwillful (traditional) enforcement cases with the potential for civil 
penalties (not including violations associated with findings assessed 
through the Reactor Oversight Process).
    ADR may also be used for discrimination violations based solely on 
a finding by DOL; however, the NRC will not negotiate the DOL finding. 
Individuals within the Commission's jurisdiction may also be offered 
ADR. ADR complements, and works in conjunction with, the traditional 
NRC enforcement process. ADR may be offered (1) before a predecisional 
enforcement conference (PEC), (2) after the initial enforcement action 
is taken (i.e., an NOV or proposed imposition of a civil penalty), or 
(3) with the imposition of a civil penalty and prior to a hearing 
request. Use of the ADR program is voluntary for all parties, including 
the NRC; any participant may end the process at any time. Mediation 
activities are kept confidential in accordance with 5 U.S.C. 574; 
however, the terms of the settlement agreement are normally formalized 
in a Confirmatory Order, which is published in the Federal Register. 
Normally, there is also a press release providing information about the 
settlement agreement.
    In some circumstances, it may not be appropriate for the NRC to 
engage in ADR (e.g., the U.S. Department of Justice has substantial 
involvement in the case, cases in which the subject matter is such that 
a Confirmatory Order detailing the terms of a settlement agreement 
cannot be made public, or other particularly egregious cases in which 
the public interest is not served by engaging in ADR). The approval of 
the Director, OE, is required in those cases where the staff proposes 
not to offer ADR.
    Additional information concerning the NRC's ADR program is 
available in the NRC Enforcement Manual and on the NRC Web site.
    In addition, an individual and his or her employer (or former 
employer) can use ADR to resolve discrimination complaints (under 
Section 211 of the ERA) before the initiation of investigative 
activities by OI (i.e., pre-investigation ADR, commonly referred to as 
``early ADR'') (see NRC Management Directive 8.8, ``Management of 
Allegations'') or a licensee-sponsored ADR program that is similar in 
nature to the NRC's early ADR program. If the parties reach a 
settlement agreement using early ADR or licensee-sponsored ADR, the NRC 
subsequently reviews the agreement to ensure that it does not include 
any provisions in violation of the NRC's ``Employee Protection'' 
regulations. If no such restrictive provisions exist, the NRC will not 
investigate the discrimination complaint or take enforcement action.

Congressional Review Act

    This policy revision is a rule as defined in the Congressional 
Review Act (5 U.S.C. 801-808). However, the Office of Management and 
Budget has not found it to be a major rule as defined in the 
Congressional Review Act.

    Dated at Rockville, Maryland, this 26th day of February, 2015.


[[Page 11695]]


    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2015-04490 Filed 3-3-15; 8:45 am]
BILLING CODE 7590-01-P